author: S. POWELL, P.J.

text:
    STATE of Ohio, Plaintiff-Appellant, v. Christina E. STOVER, Defendant-Appellee.
    NO. CA2017-04-005
    Court of Appeals of Ohio, Twelfth District, Clinton County.
    December 18, 2017
    Richard W. Moyer, Clinton County Prosecuting Attorney, Lindsey M. Fleissner, 103 East Main Street, Wilmington, Ohio 45177, for plaintiff-appellant
    Blaise Underwood, 97 North South Street, Wilmington, Ohio 45177, for defendant-appellee
   S. POWELL, P.J.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Clinton County Court of Common Pleas granting a motion to suppress filed by defendant-appellee, Christina E. Stover. For the reasons outlined below, we reverse and remand for further proceedings.

{¶ 2} On November 7, 2016, the Clinton County Grand Jury returned an indictment charging Stover with aggravated possession and trafficking of methamphetamine, both third-degree felonies, and aggravated possession of Hydrocodone, a fifth-degree felony. The charges arose after Police Officer Jeffrey Lennons with the Blanchester Police Department located methamphetamine and Hydrocodone in Stover's vehicle following her arrest for operating a vehicle while under the influence of drugs in August 2016.

{¶ 3} In December 2016, Stover filed her motion to suppress alleging her arrest and the subsequent search of her vehicle was unlawful. The trial court held a hearing and then granted Stover's motion to suppress upon finding the state failed to establish "a reasonable and articulable suspicion that [Stover] was under the influence or otherwise committing a crime" when Officer Lennons ordered her to perform field sobriety tests. The trial court further found that Officer Lennons violated Stover's right to counsel when he refused to allow Stover to have her attorney present during the administration of field sobriety tests.

{¶ 4} The state now appeals from the trial court's decision, raising two assignments of error for review.

{¶ 5} Assignment of Error No.1:

{¶ 6} THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT-APPELLEE WAS UNLAWFULLY SEIZED DUE TO THE FACT THAT THERE WAS NO REASONABLE ARTICULABLE SUSPICION TO DETAIN THE DEFENDANT-APPELLEE FOR STANDARDIZED FIELD SOBRIETY TESTS.

{¶ 7} In its first assignment of error, the state argues the trial court erred by granting Stover's motion to suppress upon finding there was no reasonable, articulable suspicion for Officer Lennon to detain Stover for purposes of conducting field sobriety tests. Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray , 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, 2012 WL 4862665, ¶ 15, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, 2015 WL 1005336, ¶ 8. In turn, when reviewing the denial of a motion to suppress, this court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Durham , 2013-Ohio-4764 764, 999 N.E.2d 1233, ¶ 14 (12th Dist.). "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207, ¶ 12.

{¶ 8} Ohio recognizes two types of lawful traffic stops. State v. Campbell , 12th Dist. Butler Nos. CA2014-02-048 and CA2014-02-051, 2014-Ohio-5315, 2014 WL 6725967, ¶ 25. The first type of lawful traffic stop is a non-investigatory stop in which an officer has probable cause to stop a vehicle because the officer observed a traffic violation. State v. Moore , 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, 2011 WL 4436647, ¶ 31, citing Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The second type of lawful traffic stop is an investigative stop, also known as a Terry stop, in which the officer has reasonable suspicion based upon specific or articulable facts that criminal behavior is imminent or has occurred. State v. Bullock , 2017-Ohio-497, 85 N.E.3d 133, ¶ 7 (12th Dist.), citing State v. Moore , 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, 2011 WL 4436647, ¶ 33, in turn, citing Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 9} While the concept of "reasonable and articulable suspicion" has not been precisely defined, it has been described as something more than an undeveloped suspicion or hunch, but less than probable cause. State v. Baughman , 192 Ohio App.3d 45, 2011-Ohio-162, 947 N.E.2d 1273, ¶ 15(12th Dist.), citing Terry at 20-21, 88 S.Ct. 1868. The reasonable suspicion standard under Terry "is an objective, not subjective, one." State v. McCandlish , 10th Dist. Franklin No. 11AP-913, 2012-Ohio-3765, 2012 WL 3582583, ¶ 7. As a result, the propriety of an investigative stop "must be viewed in light of the totality of the surrounding circumstances, from the perspective of a reasonably prudent police officer on the scene guided by his experience and training." Baughman at id. , citing State v. Batchili , 113 Ohio St. 3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus and State v. Bobo , 37 Ohio St. 3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus.

{¶ 10} At the hearing on Stover's motion to suppress, Officer Lennons-the only witness at the suppression hearing-testified that he responded to the local Kroger grocery store on a report that a blue vehicle in the parking lot had been parked for approximately two hours "occupied by a female who was nodding off and the vehicle was running." It is undisputed that the female in the vehicle was Stover.

{¶ 11} Upon arriving at the Kroger parking lot, Officer Lennons located the blue vehicle, exited his police cruiser, and walked up to the driver's side window. The vehicle's engine was running. Stover was in the driver's seat "laid back, reclined in the seat all the way back." Officer Lennons observed Stover "sweating profusely" and saw that she "was asleep. Her eyes were closed." Officer Lennons announced "very loudly" that he was with the Blanchester Police Department and began "pounding" on the window. Stover did not respond. Officer Lennons testified he continued knocking "fairly hard" on the window an additional five or six times, but failed to rouse Stover from her sleep. Officer Lennon stated that Stover's failure to wake up concerned him and made him suspect Stover was suffering from a potentially serious health issue or a possible overdose.

{¶ 12} After several minutes of knocking on the driver's side window, Stover woke up, she "sat up in the seat really quickly, grabbed her ignition keys, and then looked over and seen me standing there." Officer Lennons told Stover to open her door, which she did. After Stover opened the door, Officer Lennons described being "hit with a lot of heat coming from inside the vehicle." Officer Lennons asked Stover why her heater was running since it was a "really hot" summer day, to which Stover said she "had an appointment to get it looked at." Stover also told Officer Lennons that she was sleeping in her vehicle because she was homeless.

{¶ 13} Officer Lennons sensed that "[Stover] didn't seem to want me there talking to her." He was concerned "that maybe [Stover] was under the influence of some sort or maybe there was some sort of medical condition." The Blanchester police chief arrived on the scene and noted that the vehicle had damage on the passenger side. As a result, Officer Lennons testified that his police chief instructed him to administer field sobriety tests to Stover to ensure that she was capable of operating her vehicle lawfully. Inexplicably, Officer Lennons also testified that he did not "have a suspicion" that Stover was under the influence of drugs or alcohol prior to conducting the field sobriety tests.

{¶ 14} Stover told Officer Lennons that she did not want to perform any of the tests without her attorney present. In response, Officer Lennons informed Stover that "she would be able to speak with her lawyer, but not at that point." Officer Lennons instructed Stover on how to perform the field sobriety tests. When asked if Stover was ever given the option not to perform the tests, Officer Lennons testified "[i]f she would have told me no, it would have ended."

{¶ 15} It is generally undisputed that Stover performed very poorly on each of the field sobriety tests, thereby indicating she was under the influence of drugs or alcohol. As a result, Officer Lennons placed Stover under arrest, handcuffed her, and sat her in the back of his police cruiser. Officer Lennons then went back to Stover's vehicle where he located various drugs and drug paraphernalia within the vehicle, including methamphetamine and Hydrocodone. A urine sample later revealed that Stover testified positive for methamphetamine and marijuana. As noted above, a grand jury later indicted Stover for aggravated possession and trafficking of methamphetamine, as well as aggravated possession of Hydrocodone.

{¶ 16} After a thorough review of the record, this court finds there was ample evidence, in light of the totality of the surrounding circumstances, that would provide a reasonably prudent police officer in Officer Lennons' position with reasonable suspicion that Stover was engaged in criminal behavior. Thus, Officer Lennons could properly detain Stover for purposes of conducting field sobriety tests to ensure that she was capable of operating her vehicle lawfully. As noted above, Stover was observed "nodding off" in her vehicle while the engine was still running for approximately two hours before Officer Lennons arrived on the scene. Once there, Officer Lennons observed Stover reclined in the driver's seat of her vehicle, asleep and "sweating profusely," all while having the heater on despite it being a "very hot" summer day. The record further indicates that Stover remained in this unresponsive state for several minutes while Officer Lennons knocked on her driver's side window. The police chief noted damage to the vehicle's passenger side. Officer Lennon, therefore, was justified in his belief that Stover may have been suffering from a potentially serious health issue or a possible overdose. These facts support a finding of a reasonable, articulable suspicion to detain Stover for purposes of conducting field sobriety tests to ensure that she was capable of operating her vehicle lawfully.

{¶ 17} In granting Stover's motion, the trial court placed great weight on Officer Lennons' testimony that he did not "have a suspicion" that Stover was under the influence of drugs or alcohol prior to conducting field sobriety tests. However, as noted above, the record also demonstrates that Officer Lennons testified he "had concerns about Stover, specifically testifying he was concerned "that maybe she was under the influence of some sort or maybe there was some sort of medical condition." Regardless, as stated previously, "the standard is objective," and therefore, "the officer's own subjective belief or conclusion regarding the existence of reasonable suspicion is not relevant." McCandlish , 2012-Ohio-3765 at ¶ 9 (affirming trial court's decision denying motion to suppress even though the arresting officer may have believed he did not have sufficient grounds to stop appellant's vehicle). Moreover, although much of Stover's conduct could be considered legal, "[e]ven legal conduct, or facts that might be given an innocent construction, may, under some circumstances, justify a reasonable suspicion that criminal activity is afoot." State v. Wells , 12th Dist. Warren CA2014-10-133, 2015-Ohio-2828, 2015 WL 4207323, ¶ 10. That is the case here when reviewing Stover's odd behavior. In sum, a reasonably prudent police officer in Officer Lennons' position would have a reasonable, articulable suspicion of criminal behavior sufficient to detain Stover for purposes of conducting field sobriety tests. Therefore, the court should not have granted Stover's motion to suppress and this court sustains the state's first assignment of error.

{¶ 18} Assignment of Error No. 2:

{¶ 19} THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT-APPELLEE'S RIGHT TO COUNSEL WAS VIOLATED WHEN SHE WAS NOT ALLOWED TO HAVE HER ATTORNEY PRESENT DURING FIELD SOBRIETY TESTS.

{¶ 20} In its second assignment of error, the state argues the trial court erred by granting Stover's motion to suppress upon finding that Officer Lennons violated Stover's right to counsel by refusing to allow Stover to have her attorney present during the administration of field sobriety tests. According to Stover, Officer Lennons' actions violated R.C. 2935.20, a statute that provides, in pertinent part:

After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel. Such communication may be made by a reasonable number of telephone calls or in any other reasonable manner. Such person shall have a right to be visited immediately by any attorney at law so obtained who is entitled to practice in the courts of this state, and to consult with him privately. No officer or any other agent of this state shall prevent, attempt to prevent, or advise such person against the communication, visit, or consultation provided for by this section.
Whoever violates this section shall be fined not less than twenty-five nor more than one hundred dollars or imprisoned not more than thirty days, or both.

R.C. 2935.20, therefore, criminalizes the act of failing to provide an attorney in the foregoing circumstances and imposes either a fine or term of imprisonment for such a violation.

{¶ 21} In OVI cases, the Ohio Supreme Court held that the imposition of the exclusionary rule does not lie as a remedy for a violation of an accused's statutory right to counsel. State v. Griffith , 74 Ohio St.3d 554, 660 N.E.2d 710 (1996). In turn, "[t]he exclusionary rule is not applicable as a sanction for a violation of R.C. 2935.20." State v. Arnold , 12th Dist. Butler No. CA99-02-026, 1999 WL 699866, *5 (Sept. 7, 1999) ; State v. Sebastian , 12th Dist. Butler No. CA96-10-204, 1997 WL 176144, *1 (Apr. 14, 1997) ("the exclusionary rule is not a permissible sanction for any violation of that statute"). Additionally, the administration of standardized field sobriety tests is not a "critical stage" of the prosecution implicating the constitutional right to counsel as provided by the Sixth Amendment to the United States Constitution. See McNulty v. Curry , 42 Ohio St.2d 341, 345, 328 N.E.2d 798 (1975). Therefore, this court concludes that the trial court erred by granting Stover's motion to suppress on the basis that Officer Lennons refused to allow Stover to have her attorney present during field sobriety tests. Again, even if a violation of Stover's statutory right to counsel occurred, suppression of the field sobriety test results is not an appropriate remedy. State v. Turner , 11th Dist. Portage No. 2007-P-0090, 2008-Ohio-3898, 2008 WL 2955396, ¶ 27 ;

City of Twinsburg v. Lacerva , 9th Dist. Summit No. 23849, 2008-Ohio-550, 2008 WL 375919, ¶ 7. This court sustains the state's second assignment of error.

{¶ 22} Judgment reversed and remanded for further proceedings.

RINGLAND, J., concurs.

PIPER, J., concurs separately.

PIPER, J., concurring separately.

First Assignment of Error

{¶ 23} I agree with the majority's analysis as to the first assignment of error. Officer Lennons' initial contact led him to believe Stover was either suffering from a medical condition or she had experienced an overdose on drugs. As his contact continued, objectively, the reason to believe Stover was suffering from a medical condition gradually declined and the reason to believe she was under the influence of something that impaired her driving abilities increased.

{¶ 24} Officer Lennons' statements during his testimony give an appearance of inconsistency when considered in isolation. Yet a reasonably prudent officer in the totality of the unfolding circumstances would clearly possess a reasonable and articulable suspicion of Stover being under the influence of a substance rendering her unsuitable to operate a motor vehicle. This is evident by the police chief's arrival on the scene and directive to Officer Lennons to initiate a field sobriety test particularly after observing damage to Stover's vehicle.

Second Assignment of Error

{¶ 25} I concur with the majority's result concerning the second assignment of error, but I disagree with the majority opinion in its implication that R.C. 2935.20 could apply to a field sobriety test before police take a person into custody. Similarly, I disagree that the inherent authority of a court, in its administration of justice, can offer no remedy for a clear violation of R.C. 2935.20.

R.C. 2935.20 Is Not Applicable to a Field Sobriety Test

{¶ 26} A field sobriety test is not testimonial in nature and the request to submit to such a test is merely a preparatory step in the initiation of a law enforcement investigation. State v. Arnold , 12th Dist. Butler No. CA99-02-026, 1999 WL 699866, *1-2 (Sept. 7, 1999). A request to take a field sobriety test does not implicate the Fifth nor the Sixth Amendments. Id. , see also State v. Perez , 1st Dist. Hamilton Nos. C-040363, C-040364, and C040365, 2005-Ohio-1326, 2005 WL 678947, ¶ 13-18 (holding that there is no right to counsel at a field sobriety test). Should an individual refuse to participate in a field sobriety test, then the law enforcement officer involved may detain the individual, take into custody, and transport that person to an appropriate facility for a breathalyzer, blood, or urine test.

{¶ 27} R.C. 2935.20 only applies "[a]fter the arrest, detention, or any other taking into custody of a person ." (Emphasis added.) Terms followed by a catchall phrase linked by the word other are conjoined. State v. Vaduva , 2016-Ohio-3362, 66 N.E.3d 212, ¶ 25 (2nd Dist.). The term "other" in conjunction with the phrase "taking into custody" is indicative of legislative intent and requires that the previous terms only embrace similar things of the same character. Id. (discussing the rule of construction eiusdem generis). See also State ex rel. Barno v. Crestwood Bd. of Edn. , 134 Ohio App.3d 494, 505, 731 N.E.2d 701 (11th Dist.1998) (holding that the sequence of terms is not necessarily controlling; discussing conjoined terms per eiusdem generis). The meaning of "detention" therefore must be similar to when a person is arrested or taken into custody. Because the request for a field sobriety test does not require a person be taken into custody, I would find R.C. 2935.20 inapplicable when an officer conducts a field sobriety test.

{¶ 28} A significant aspect of the judiciary's role in upholding the law is to give effect to a statute with a paramount concern for its intent without rendering the statute meaningless or inoperative. State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs. , 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404, ¶ 14. Clearly, the purpose of R.C. 2935.20 is that when an individual loses free will and volition resulting in the type of restraint associated with a formal arrest, that individual has a statutory right to have access to facilities so to contact or communicate with an attorney or another person of choice toward securing an attorney. An in-custody detention does not occur upon the request to perform a field sobriety test.

R.C. 2935.20 Remedies

{¶ 29} The federal exclusionary rule does not apply to a statutory right violation. Yet at least one court has suggested a statutory violation by law enforcement of R.C. 2935.20 violates the constitutional guarantee to due process of state law and that a motion in limine may be appropriate. City of Lakewood v. Waselenchuk , 94 Ohio App.3d 684, 689, 641 N.E.2d 767 (8th Dist.1994). But cf. State v. Layton , 111 Ohio App.3d 76, 675 N.E.2d 862 (10th Dist.1996). After all, the statutory right to counsel pursuant to R.C. 2935.20 goes beyond the right to counsel secured by the federal and state constitutions. State v. Downing , 2d Dist. Greene No. 2001-CA-78, 2002 WL 441353, *2-3 (Mar. 22, 2002). Therefore, a court should be allowed to consider the suppression of evidence as a remedy for a R.C. 2935.20 violation on a case-by-case basis, driven by the facts. City of Lakewood ; City of Fairborn v. Mattachione , 72 Ohio St.3d 345, 346-347, 650 N.E.2d 426 (1995) (Wright, J., dissenting with Moyer and Pfeiffer, J.J., joining).

{¶ 30} In conclusion, I agree with the majority judgment but would hold that R.C. 2935.20 is inapplicable to a field sobriety test. Therefore, there is no need to discuss the exclusionary rule or what other remedies might be available. I also disagree with the implication that when R.C.2935.20 is applicable, a clear violation of that statute can never permit a court to implement a remedy should justice so require.


source: Caselaw Access Project

author: MELODY J. STEWART, J.:

license: Public Domain

text:
    Edward MCKEE, Plaintiff-Appellant v. Shauna MCCANN, et al., Defendants-Appellees
    No. 104956
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 1, 2017
    Edward McKee, pro se, 5838 Darry Circle, Norcross, GA 30093, FOR APPELLANT
    Michael E. Cicero, Vincent A. Feudo, Nicola Gudbranson & Cooper, L.L.C., Republic Building, Suite 1400, 25 West Prospect Avenue, Cleveland, OH 44115, ATTORNEYS FOR APPELLEES
    BEFORE: Stewart, J., E.A. Gallagher, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} As plaintiff-appellant Edward McKee was leaving a Walmart store, he chose to exit the store and bypass a line of customers who were having their purchases verified by a receipt. A Walmart employee asked McKee to produce a receipt, but McKee refused and exited the store. An off-duty South Euclid police officer working as a security guard for Walmart followed McKee to the parking lot, stopped him, and instructed him to produce his receipt. Maintaining that he had no legal obligation to do so, McKee again refused to show his receipt. The security guard called for police assistance. Two officers responded and ordered McKee to show identification. He refused, causing the officers to place him under arrest. McKee then relented and showed the police his identification and receipt, at which point they released him without charge. In response to McKee's citizen complaint about the incident, the police sought an opinion from the city law director, who concluded that the police officers acted appropriately by detaining McKee when he failed to identify himself while being held on suspicion of shoplifting.

{¶ 2} McKee brought this action against defendants Brian Shamblin and Patrick Delahanty (the police officers who responded to Walmart); James Wilson (a police lieutenant who wrote an internal report about the incident); Kevin Nietert (the chief of police who asked the law director for a legal opinion on the conduct of the officers); Michael Lograsso (the city law director); and the city of South Euclid ("city"). McKee asserted the following claims:

1. Unlawful Detention: McCann and South Euclid
2. Negligence: McCann and South Euclid
3. Intentional Infliction of Emotional Distress: Shamblin and South Euclid
4. Assault and Battery: Shamblin and South Euclid
5. False Arrest: Shamblin and South Euclid
6. Fraudulent Inducement in Verbal Contract: Shamblin and South Euclid
7. Fraudulent Misrepresentation: Shamblin and South Euclid
8. Defamation: McCann, Shamblin, and South Euclid
9. Invasion of Privacy: McCann, Shamblin, Delahanty, and South Euclid
10. Libel: Wilson, Nietert, Lograsso, and South Euclid
11. Respondeat Superior: South Euclid
12. Ratification: Wilson, Nietert, Lograsso, and South Euclid

{¶ 3} The city, on behalf of itself, Shamblin, Delahanty, Wilson, Nietert, and Lograsso, filed a motion to dismiss the complaint. It argued that it was immune from liability for the negligence, intentional tort, and respondeat superior claims under R.C. 2744.02. It also argued that claims against the individual defendants were barred by qualified privileges that protected them in the performance of their job duties.

{¶ 4} The court granted the motion to dismiss over McKee's opposition, finding both that the defendants were "statutorily immune to plaintiff's specific claims" and that McKee "cannot prove any facts to support his claims against these defendants that would entitle him to relief."

I. Claims against Shamblin and Delahanty

{¶ 5} The first assignment of error contests the dismissal in favor of defendants Shamblin and Delahanty, the city police officers who responded to the Walmart parking lot.

A. Intentional Infliction of Emotional Distress

{¶ 6} The third cause of action alleged that "Shamblin's treatment of the situation, including yelling and moving towards Plaintiff with eyes wide as if he were shocked by a serious crime Plaintiff had committed, was completely out of line with the seriousness of the alleged offense." McKee maintained that Shamblin's "aggressive, combative behavior" caused him to "fear for his safety" and scared him into complying with Walmart's policy to check the receipts of its exiting customers.

{¶ 7} Civ.R. 12(B)(6) states that a complaint is not subject to dismissal for failure to state a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc ., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, "[a]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

{¶ 8} Employees of a political subdivision may be entitled to immunity under R.C. 2744.03(A)(6). That section states that

an employee is immune from liability unless the employee's actions or omissions are manifestly outside the scope of employment or the employee's official responsibilities; the employee's acts or omissions were malicious, in bad faith, or wanton or reckless; or liability is expressly imposed upon the employee by a section of the Revised Code.

Cramer v. Auglaize Acres , 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17.

{¶ 9} McKee incorrectly alleged that Shamblin was acting outside the scope of his employment because he was "enforcing the policy of a private business and/or his personal opinion about merchants' rights, instead of the law of the state of Ohio[.]" Complaint at ¶ 207. The complaint alleged that McKee had been detained on suspicion of shoplifting. Complaint at ¶ 189. While the loss of merchandise affects a merchant, shoplifting is another word for "theft"-a criminal offense under R.C. 2913.02(A). "[I]n Ohio the state has a direct interest in all crimes" such that "all crimes are prosecuted in the name of the people, not the victim[.]" State v. Powell , 8th Dist. Cuyahoga No. 99386, 2014-Ohio-2048, 2014 WL 2019258, ¶ 64. To the extent that Shamblin was investigating a potential criminal offense, he was acting within the scope of his employment as a police officer. State v. Hoop , 12th Dist. Brown No. CA2011-07-015, 2012-Ohio-992, 2012 WL 777332, ¶ 25.

{¶ 10} We likewise find that McKee failed to state a cause of action for intentional infliction of emotional distress.

{¶ 11} To establish a claim for intentional infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant intended to cause, or knew or should have known that his actions would result in serious emotional distress; (2) the defendant's conduct was so extreme and outrageous that it went beyond all possible bounds of decency and can be considered completely intolerable in a civilized community; (3) the defendant's actions proximately caused psychological injury to the plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable person could be expected to endure. Ashcroft v. Mt. Sinai Med. Ctr ., 68 Ohio App.3d 359, 366, 588 N.E.2d 280 (8th Dist. 1990).

{¶ 12} This is not the "rare case that reaches the very high bar of showing 'extreme and outrageous' conduct." Lombardo v. Mahoney , 8th Dist. Cuyahoga No. 92608, 2009-Ohio-5826, 2009 WL 3649997, ¶ 7.

It is not enough that the defendant acted with intent to cause emotional distress. Liability will be found only where "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

Marconi v. Savage , 8th Dist. Cuyahoga No. 99163, 2013-Ohio-3805, 2013 WL 4774506, ¶ 29, quoting Yeager v. Local Union 20 , 6 Ohio St.3d 369, 374, 453 N.E.2d 666 (1983).

{¶ 13} McKee alleged only that Shamblin yelled and moved toward him with "eyes wide." This is not conduct so extreme and outrageous that it went beyond all possible bounds of decency and can be considered completely intolerable in a civilized community. As a police officer investigating a possible crime, Shamblin had wide latitude to take control of the scene. Shamblin's act of raising his voice was not outrageous, even if McKee found it offensive.

B. Assault and Battery; False Arrest

{¶ 14} The fourth cause of action alleged that Shamblin committed assault and battery by making "aggressive movements" and touching and physically restraining McKee.

{¶ 15} "A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results." Love v. Port Clinton , 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988), citing Restatement of the Law 2d, Torts, Section 13, at 25 (1965).

{¶ 16} We recognize that for purposes of Civ.R. 12(B)(6), affirmative defenses typically involve facts outside the complaint. An exception to this general rule exists when the affirmative defense is obvious from the face of the complaint. Hughes v. Robinson Mem. Portage Cty. Hosp ., 16 Ohio App.3d 80, 82, 474 N.E.2d 638 (11th Dist. 1984) ; Bell v. Horton , 107 Ohio App.3d 824, 826-827, 669 N.E.2d 546 (4th Dist. 1995).

{¶ 17} The battery allegations involve Shamblin's act of handcuffing McKee. See complaint at ¶ 175. "Officers are privileged to commit battery when making a lawful arrest, but the privilege is negated by the use of excessive force." Alley v. Bettencourt , 134 Ohio App.3d 303, 313, 730 N.E.2d 1067 (4th Dist. 1999). The battery count contains no allegation that Shamblin used excessive force when he handcuffed McKee-the complaint alleged only that the act of handcuffing McKee constituted a battery. Shamblin was privileged when making the arrest and the court properly dismissed this claim.

{¶ 18} For the same reasons, the court properly dismissed the false arrest claim pleaded in the fifth cause of action. That cause of action alleged that Shamblin wrongly placed McKee under arrest because he had no probable cause, reasonable suspicion, or any other type of cause to believe that McKee committed a violation of R.C. 2921.29(A) -failing to disclose to a law enforcement officer the person's name, address, or date of birth when the law enforcement officer reasonably suspects that the person is committing or has committed a criminal offense.

{¶ 19} "A false arrest and false imprisonment claim is made by establishing two elements: 1) the intentional detention of the person; and, 2) the unlawfulness of the detention." Ficklin v. Home Depot U.S.A., Inc ., 8th Dist. Cuyahoga No. 94458, 2010-Ohio-5601, 2010 WL 4684652, ¶ 34. Police officers have a qualified privilege for purposes of a false arrest claim if the officer possessed probable cause to justify an arrest. Henderson v. Euclid , 8th Dist. Cuyahoga No. 101149, 2015-Ohio-15, 2015 WL 114601, ¶ 55.

{¶ 20} The complaint alleged facts showing that McKee refused to show identification to Shamblin-it stated that when asked if he had identification, McKee pointed to his backpack and, when asked to display the identification, McKee said "no thank you" because "he knew that there was no legal requirement to search his own backpack and provide an ID card to a police officer upon demand." Complaint at ¶ 77. McKee's refusal to show identification was made despite knowing that "Shamblin thinks that a merchant 'has a right to verify' that shoppers haven't committed theft by forcing them to wait in long lines and present their personal property (receipts and recent purchases), for inspection before they are allowed to leave a store." Id . at ¶73. The complaint thus showed that McKee understood that Shamblin suspected that McKee's refusal to allow store personnel to verify his purchases could have been to hide a potential theft. As it happened, McKee paid for his purchases. But the fact that there was no theft did not mean that Shamblin's initial suspicion that McKee might have been shoplifting was unreasonable. State v. Andrews , 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991) (circumstances for determining reasonable suspicion not viewed in hindsight). R.C. 2921.29(A) imposes strict liability for failing to show identification, so Shamblin had a qualified immunity from suit for false arrest.

C. Fraudulent Inducement into Verbal Contract

{¶ 21} The sixth cause of action alleged that Shamblin placed McKee under arrest for failing to disclose identifying information for the sole purpose of inducing McKee's capitulation to the request to show his identification.

{¶ 22} This aspect of the complaint confused cause and effect: Shamblin placed McKee under arrest because he had probable cause to conclude that the offense of failing to disclose personal information had been committed. The complaint stated as much: McKee told the police that he had identification in his backpack, but refused to produce it, causing Shamblin to say, "so you're not gonna identify yourself," resulting in him placing McKee under arrest. Complaint at ¶ 79-80. That the shock of being placed under arrest caused McKee to finally identify himself did not undermine the fact that the officer had probable cause to arrest before McKee did so. Even with the most liberal construction of these facts in McKee's favor, Millennia Hous. Mgt. v. Johnson , 8th Dist. Cuyahoga No. 96854, 2012-Ohio-1044, 2012 WL 892918, ¶ 10, they fail to allege a viable cause of action of any kind, much less the one stated here for a breach of oral contract for which there was no mutual assent to any defined terms.

D. Fraudulent Misrepresentation

{¶ 23} The seventh cause of action alleged that Shamblin fraudulently represented himself as enforcing R.C. 2921.29(A)"when in reality he simply wanted to scare Plaintiff into submission on the receipt issue." Complaint at ¶ 228. We summarily reject McKee's assertion that the court erred by dismissing this cause of action for the same reasons given in our disposition of the sixth cause of action for fraudulent inducement in a verbal contract-the facts alleged by McKee show that Shamblin had probable cause to arrest based on McKee's refusal to give identifying information. In addition, Shamblin had a reasonable basis for suspecting that McKee's refusal to show his receipt was intended to evade potential shoplifting. The arrest was effectuated because McKee failed to provide identifying information, not for the purpose of forcing him to identify himself.

E. Defamation

{¶ 24} McKee premised his eighth cause of action on defamation, alleging that "Shamblin's false arrest of Plaintiff, both in a public parking lot and in front of other customers including Plaintiff's roommate and roommate's girlfriend, defamed Plaintiff in the eyes of the public as the public now thinks of Plaintiff as a criminal." Complaint at ¶ 231.

{¶ 25} Defamation concerns a publication that contains a false statement made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business, or profession. Jackson v. Columbus , 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9.

{¶ 26} As pleaded, the defamation claim did not involve any statement made by Shamblin; McKee alleged that the arrest itself was defamatory because it was "false" and it occurred in public. We previously stated that Shamblin had qualified immunity on the false arrest claim, and that qualified immunity extends to a defamation claim premised on the same conduct. As pleaded, the defamation claim is an attempt to alternatively plead a nonviable false arrest claim.

F. Invasion of Privacy

{¶ 27} The ninth cause of action alleged that both Shamblin and Delahanty invaded McKee's privacy: Shamblin allegedly "terrified Plaintiff into giving additional information" about products whose purchase McKee did not wish to make public; Delahanty allegedly repeated McKee's social security number in front of Walmart personnel and repeated "unknown amounts of confidential information over the insecure police radio in his car." Complaint at ¶ 232-235.

{¶ 28} "An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Housh v. Peth , 165 Ohio St. 35, 38, 133 N.E.2d 340 (1956), paragraph two of the syllabus. "[T]o assert a tortious invasion of privacy claim, plaintiff must show that the area intruded upon was private, and that the intrusion of the defendants was unwarranted and offensive or objectionable to the reasonable [person]."

Krause v. Case W. Reserve Univ ., 8th Dist. Cuyahoga No. 70712, 1996 WL 732537, *9 (Dec. 19, 1996), citing M.J. DiCorpo, Inc. v. Sweeney , 69 Ohio St.3d 497, 507, 634 N.E.2d 203 (1994).

{¶ 29} This claim fails on its face because McKee's act of purchasing his merchandise from a store open to the public showed that he did not consider the items he bought to be private. McKee did not allege that he utilized a self-checkout in order to ensure that a cashier would not know what he purchased. In addition, he was not the only customer in the store-the complaint alleged that there was a "long line" of customers waiting at the exit to have their receipts checked by store personnel, and some of the those customers were presumably waiting in line with him at checkout. Finally, the complaint failed to identify the purchases that McKee wished to keep from the public. While there may be an argument that some products are of such a personal nature that a purchaser might desire to keep their identity private, there is nothing from the face of the complaint to show that the items McKee purchased were of such a personal nature that discretion dictated that publication would be offensive or objectionable to the reasonable person.

{¶ 30} The invasion of privacy claim against Delahanty presents a different question. The publication of an individual's social security number may form the basis of an invasion of privacy action. See Lambert v. Hartmann , 178 Ohio App.3d 403, 2008-Ohio-4905, 898 N.E.2d 67, ¶ 27 (1st Dist.), rev'd on other grounds , 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585. Nevertheless, as an employee of a political subdivision, Delahanty is immune from suit.

{¶ 31} R.C. 2744.03(A)(6) states that an employee of a political subdivision is immune from liability unless (a) the employee's acts were manifestly outside the scope of the employee's official responsibilities, (b) the employee's acts were done with malicious purpose, in bad faith, or in a wanton or reckless manner, or (c) liability is expressly imposed upon the employee by a section of the Revised Code. McKee did not allege that Delahanty's conduct fell within any of these exceptions to liability. The complaint alleged only that Delahanty "loudly repeated" McKee's social security number to verify the digits of the number as given to him by McKee. See complaint at ¶ 145. While he might have been more discreet in verifying the social security number, there is no allegation that Delahanty acted in bad faith or in a wanton or reckless manner by doing so. Ghaster v. Rocky River , 8th Dist. Cuyahoga No. 99779, 2013-Ohio-5587, 2013 WL 6730925, ¶ 42.

II. Claims against Wilson, Nietert, and Lograsso

A. Libel

{¶ 32} The tenth cause of action is a libel claim against Lt. Wilson, Chief Nietert, and law director Lograsso, whose written statements concerning their investigation into the incident involving McKee were alleged to have intentionally misrepresented facts as shown by body camera video taken by the police officers on the scene.

{¶ 33} The investigation at the heart of this cause of action was prompted by an email that McKee sent to Nietert, in which he complained about the "stress of the false arrest and that it would throw off his sleep schedule for the whole week." Complaint at ¶ 167. Wilson investigated McKee's complaint and concluded that the police officers were justified in detaining McKee after he failed to present the receipt for his purchases and that McKee was "purposely goading the involved officers to take action against him in an effort to file an illegal search or illegal arrest lawsuit at a later time." Id . at ¶176. Lograsso issued a legal opinion stating that Shamblin's demand that McKee present his ID was the functional equivalent of seeking the information sought under R.C. 2921.29(A). Id . at ¶179. Nietert then wrote McKee stating that McKee had been placed under arrest for refusing to identify himself, that it was after arrest that McKee had "a change of heart and agreed to cooperate" with the police, and that once McKee had properly identified himself, he was released without charges. Id. at ¶184.

{¶ 34} "In Ohio, 'libel' is defined generally as a false written publication, made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." (Citations omitted.) A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council , 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995).

{¶ 35} A defendant can invoke the defense of qualified privilege to a claim for libel where "circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty" or where "the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do." Hahn v. Kotten , 43 Ohio St.2d 237, 245-246, 331 N.E.2d 713 (1975).

{¶ 36} Wilson's statements were subject to a qualified privilege for statements made in internal police communications "made between law enforcement officers and [which] concern matters in which the officers have a common interest." Black v. Cleveland Police Dept. , 96 Ohio App.3d 84, 89, 644 N.E.2d 682 (8th Dist. 1994). See also Davis v. Warrensville Hts ., 8th Dist. Cuyahoga No. 72722, 1998 WL 12337, *3-4 (Jan. 15, 1998).

{¶ 37} Lograsso's legal opinion was immune from liability under R.C. 2744.03(A)(7), which grants immunity to a city law director to the extent that the law director is "entitled to any defense or immunity available at common law or established by the Revised Code." Lograsso's legal opinion was absolutely privileged because it was "a communication made by the law director of a village or municipality in his official capacity[.]" Flynn v. Relic , 8th Dist. Cuyahoga No. 41404, 1980 WL 355035, *4 (June 26, 1980).

{¶ 38} Nietert's communication to McKee suffered from a more mundane issue than privilege-there was no allegation that the letter was published to any third party. The complaint uses the words "public record" to describe the writing, presumably indicating McKee's belief that the accessibility of these writings under R.C. 149.01, the Ohio Public Records law, is sufficient to establish publication. " 'Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.' " Hecht v. Levin , 66 Ohio St.3d 458, 460, 613 N.E.2d 585 (1993), quoting 3 Restatement of the Law 2d, Torts, Section 577(1) (1965). McKee did not allege that the letter was communicated to any person other than himself-he alleged only that "Defendant Nietert wrote an evasive and boilerplate letter to Plaintiff * * *." Complaint at ¶ 184. The claim for relief against Nietert failed to establish the publication element of a defamation claim.

B. Ratification

{¶ 39} The twelfth cause of action alleged that Wilson, Nietert, and Lograsso ratified the actions of police officer Shamblin, who allegedly engaged in a "proprietary function" when he arrested McKee for failing to provide identifying information. Complaint at ¶ 248.

{¶ 40} Even if we assume without deciding that ratification of Shamblin's conduct existed in this context, there is no allegation that Wilson, Nietert, and Lograsso acted with malicious purpose, in bad faith, or in a wanton or reckless manner by doing so. See R.C. 2744.03(A)(6). On that basis, the claims against them were properly dismissed.

III. Claims Against South Euclid

A. Intentional Torts

{¶ 41} The city is immune from all intentional tort claims because R.C. 2744.02(B), which states those circumstances in which immunity does not apply, contains no exceptions to immunity for intentional tort claims. Thornton v. Cleveland , 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 6 (8th Dist.) ; Henderson , 8th Dist. Cuyahoga No. 101149, 2015-Ohio-15, 2015 WL 114601, at ¶ 62. The court did not err by dismissing claims for relief 1, 3, 4, 5, 6, 7, 8, 9, and 10 against the city.

B. Negligence

{¶ 42} The second count of the complaint alleged that the city was negligent in failing to inform or train a police officer, acting as a security guard, about the limits of the "merchant's privilege" to detain a person for a reasonable length of time if the merchant has probable cause to believe the person unlawfully took items.

{¶ 43} The operation of a police department is a governmental function for which the city is immune. See R.C. 2744.01(C)(2)(a). There are only five exceptions to a political subdivision's governmental immunity: (1) the negligent operation of a motor vehicle by an employee; (2) the employee's negligent performance of proprietary functions; (3) the negligent failure to keep public roads open and in repair; (4) the negligence of employees occurring within or on the grounds of buildings used in connection with the performance of governmental functions; or (5) express imposition of liability by statute. See R.C. 2744.03(B)(1)-(5).

{¶ 44} The complaint does not allege any facts falling within these exceptions to the city's immunity. McKee did raise R.C. 2744.03(B)(2) -that the city was liable for the security guard's negligence-but that exception to immunity applies only to proprietary governmental functions. As pleaded, the negligence count alleged that the city "improperly informed and/or trained" the security guard. "[T]he provision of police services and the training of police are governmental functions subject to statutory immunity." Wingfield v. Cleveland , 8th Dist. Cuyahoga No. 100589, 2014-Ohio-2772, 2014 WL 2932780, ¶ 13.

C. Respondeat Superior

{¶ 45} The eleventh count of the complaint alleged that the city was vicariously liable for the actions of Shamblin, Delahanty, Wilson, Nietert, and the security guard under a theory of respondeat superior.

{¶ 46} "A political subdivision may not be held liable under a theory of respondeat superior unless one of the exceptions to the sovereign immunity listed in R.C. 2744.02(B) applies." Reno v. Centerville , 2d Dist. Montgomery No. 20078, 2004-Ohio-781, 2004 WL 316512, ¶ 53, citing Lee v. Cleveland , 151 Ohio App.3d 581, 2003-Ohio-742, 784 N.E.2d 1218 (8th Dist.). McKee's argument fails because his claims do not fall within any exception to immunity under R.C. 2744.02(B), nor has he argued that any of the statutory exceptions to immunity exist. Woods v. Wellston , S.D.Ohio No. 2:02-cv-762, 2005 WL 2654230, *18 (June 15, 2005).

{¶ 47} With respect to the security guard, a claim for respondeat superior will not lie against the city because the security guard was not acting in the course and scope of her employment as a city police officer. See Hubbard v. Charter One Bank , 2017-Ohio-1033, 87 N.E.3d 685, ¶ 24. McKee specifically alleged that the security guard's "actions show that she considered her actions as being in the scope of her employment as a private security guard enforcing store policy, not in the scope of her employment as a South Euclid police officer." Complaint at ¶ 45. In fact, McKee specifically alleged in the eleventh cause of action that the security guard's actions "were taken in the course of her employment by Security Hut, and Security Hut is vicariously liable for her actions." Id . at ¶243.

{¶ 48} With respect to Shamblin, Delahanty, Wilson, and Nietert, we acknowledge that their qualified immunity "is no shield to the employer's liability for acts under the doctrine of respondeat superior." State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas , 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082, ¶ 28, citing Adams v. Peoples , 18 Ohio St.3d 140, 142-143, 480 N.E.2d 428 (1985). Nevertheless, McKee framed their conduct under the eleventh cause of action as "part of that city's proprietary functions of 'Providing Retail Security' and 'Supervising Retail Security[.]' " Complaint at ¶ 245. There are no facts pleaded to show that Shamblin, Delahanty, Wilson, and Nietert were engaged in the proprietary function of providing retail security. The facts pleaded in the complaint leave no doubt that Shamblin, Delahanty, Wilson, and Nietert were engaged in governmental functions relating to a police department-only the security guard was engaged in providing retail security.

D. Ratification

{¶ 49} The twelfth cause of action alleged that the city ratified the actions of Shamblin "in the course of the city's performance of the proprietary functions of 'Providing Retail Security' and 'Supervising Retail Security.' " Complaint at ¶ 148.

{¶ 50} Ohio does not recognize an independent cause of action for ratification. As pleaded, the twelfth count of the complaint is nothing more than a respondeat superior cause of action, where ratification of an employee's actions is required to show that the employer adopted acts committed by an employee who was acting outside the scope of employment. Riotte v. Cleveland , 195 Ohio App.3d 387, 2011-Ohio-4507, 960 N.E.2d 496, ¶ 18 (8th Dist.). The complaint claimed that Shamblin was acting outside the scope of his employment and was, in essence, providing "retail security" because he was "enforcing the policy of a private business and/or his opinions about merchants' rights." Complaint at ¶ 207. We rejected this argument in our discussion of the third cause of action and apply that same conclusion here: the complaint shows that Shamblin arrested McKee for an alleged violation of a law requiring a person to give identifying information. That was an act fully within the course and scope of Shamblin's duties as a police officer.

{¶ 51} The security guard was not acting in the course and scope of her employment as a city police officer at the time the events giving rise to the complaint occurred. A principal ratifies the unauthorized act of his agent if the "principal, with full knowledge of the facts, conducts himself in a way which manifests his intention to approve an earlier act performed by his agent which did not bind him." Karat Gold Imports, Inc. v. United Parcel Serv., Inc ., 62 Ohio App.3d 604, 611, 577 N.E.2d 115 (8th Dist. 1989). To constitute ratification of employee conduct outside the scope of employment, the ratified conduct must further or promote the employer's business. Martin v. Cent. Ohio Transit Auth ., 70 Ohio App.3d 83, 92, 590 N.E.2d 411 (10th Dist. 1990).

{¶ 52} The security guard's outside employment was too attenuated to constitute a benefit or furtherance of the city's business. The complaint alleged that the city misconstrued and misrepresented evidence shown on the body camera video to justify the security guard's actions, but the city gained no benefit from doing so. Absent ratification, the security guard's conduct was not attributable to the city and thus not actionable against it. The complaint shows only that the city investigated the incident and rejected McKee's assertion that the security guard needed probable cause to stop him. This conclusion did not approve her actions; it merely found that she acted justifiably by stopping McKee on suspicion of shoplifting.

{¶ 53} Judgment affirmed.

EILEEN A. GALLAGHER, P.J., and

LARRY A. JONES, SR., J., CONCUR

      McKee also named as defendants Shauna McCann (the security guard); "Loss Prevention Guys 1 & 2" (Walmart employees); Security Hut, Inc.; and Walmart Stores, Inc. These defendants are not parties to this appeal.


author: EILEEN T. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Asa J. ASADI-OUSLEY, Defendant-Appellant
    No. 104267
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: August 17, 2017
    Britta M. Barthol, P.O. Box 670218, Northfield, Ohio 44067, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Mary Weston, Assistant County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.
    JOURNAL ENTRY AND OPINION
    ON RECONSIDERATION

      The original decision in this appeal, State v. Asadi-Ousley , 8th Dist. Cuyahoga No. 104267, 2017-Ohio-2652, 2017 WL 1742891, released May 4, 2017, is hereby vacated. This opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 22(C) ; see also S.Ct.Prac.R. 7.01.

   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Asa J. Asadi-Ousley ("Asadi-Ousley"), appeals his convictions and sentence for rape, felonious assault, kidnapping, and his sexually violent predator conviction. He raises the following assignments of error for review:

1. The trial court erred in failing to grant trial counsel's motion to continue trial.
2. The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that [Asadi-Ousley] was guilty of the sexually violent predator specification attached to [Counts 1, 2, and 7] of the indictment.
3. [Asadi-Ousley's] convictions for rape, felonious assault, kidnapping, and the sexual predator specification were against the weight of the evidence.
4. The trial court erred when it failed to merge the sentences imposed in [Counts 1, 2, and 7] as they are allied offenses of similar import.
5. [Asadi-Ousley] was denied his right to effective assistance of counsel guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments to the United States Constitution when his attorney failed to argue that [Asadi-Ousley's] convictions for rape, felonious assault, and kidnapping were allied offenses of similar import.

{¶ 2} After careful review of the record and relevant case law, we affirm Asadi-Ousley's convictions and sentence.

I. Procedural and Factual History

{¶ 3} In July 2015, Asadi-Ousley was charged in a seven-count indictment. Counts 1 and 2 charged him with rape, and each count carried a sexually violent predator specification. Counts 3 and 4 charged him with aggravated robbery. Count 5 charged him with felonious assault, and Counts 6 and 7 charged him with kidnapping.

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

{¶ 5} Sometime around October 2008, T.M. moved from Huron, Ohio, to Cleveland to live with her boyfriend and his father. They lived in a duplex near the intersection of East 140th Street and Kinsman in Cleveland. T.M. had never lived in Cleveland and was unfamiliar with the neighborhood. On December 31, 2008, T.M. decided to spend New Year's Eve with some friends she recently made. T.M. testified that she had consumed two alcoholic drinks and smoked some marijuana with her friends. Around 10:30 p.m., one of her friends drove her home so she could watch the New Year's festivities on television with her boyfriend. When she arrived, however, her boyfriend and his father were not home. The apartment did not have a phone so T.M. could not call anyone. Since no one was home, T.M. decided to walk to the corner store to buy some beer to drink while she watched the ball drop in Times Square on television. T.M. walked to the store around 10:45 p.m. and bought a can of beer. As she was walking back home, a man grabbed her from behind and held a knife against her neck. He told her not to scream or he would kill her. T.M. testified that she believed she heard two voices. The attacker covered her mouth with his hand. T.M. testified that she never observed her attacker's face because he approached her from behind. With the knife held to her neck, the attacker pushed T.M., forcing her into an alleyway. The attacker then struck T.M. in the back of her head and she lost consciousness. T.M. referred to the alley as "the cut." She described it as an area between a house and a building.

{¶ 6} T.M. awoke to find herself on the ground in the alley, her lip and nose were bleeding, her vagina was sore, and her head hurt. Her shirt was ripped open and her pants and underwear were pulled down. She testified that she realized that she had been raped. Her can of beer and three dollars in change were gone. T.M. walked out of the alleyway and headed back home. She called her boyfriend from a payphone on her way back, but her attempt to reach him was unsuccessful. A boy she recognized from the neighborhood saw her walking and helped her make it back home. When T.M. arrived home, the house was still empty. She laid in bed and cried. T.M. testified that she had suffered from depression when she was a teenager. She stayed in bed until the morning of January 3, 2009, when she went to her neighbor's house and called her boyfriend and her mother, J.H. She told them what had happened. T.M.'s mother and boyfriend both advised her to go the hospital. J.H. testified that she remembered getting the phone call from T.M. She still remembers that phone call because of how distraught T.M. sounded. T.M. was scared and crying hysterically.

{¶ 7} T.M. then called an ambulance and was transported to the hospital. She brought the clothes she wore on the night of the attack with her to the hospital. T.M. spoke with police officers at the hospital, and a nurse performed a sexual assault kit on T.M.

{¶ 8} Sexual Assault Nurse Examiner Deanna Johnson ("Nurse Johnson") performed T.M.'s examination. Nurse Johnson testified that T.M. had vaginal pain and bleeding and was crying during the examination. Nurse Johnson further testified that T.M. disclosed she had been raped vaginally by strangers, one of whom had a knife, and had been struck in the head and lost consciousness. Nurse Johnson observed a scratch on T.M.'s neck consistent with T.M.'s report of having a knife held to her neck. Nurse Johnson collected samples for the sexual assault kit and collected T.M.'s clothing.

{¶ 9} Cleveland Police Officer Jenae Treece ("Officer Treece") responded to the report of T.M.'s rape and spoke to T.M. at the hospital. T.M. told her that one or possibly two suspects were involved in the attack, one of which had a knife. Officer Treece testified that T.M. had a scratch on her neck consistent with a knife being held there. No suspect was identified during her investigation. Officer Treece described the area where T.M. was attacked as being between East 139th Street and East 140th Street, behind a beauty supply store.

{¶ 10} T.M. moved to West Virginia after the incident. Almost seven years later, sometime in 2015, Cleveland police contacted T.M. The officers had her look at some photographs to identify her attacker, but she was unable to do so because she never saw his face. T.M. could not identify Asadi-Ousley at trial as her attacker.

{¶ 11} Jade McDaniel, a forensic scientist employed with the Ohio Bureau of Criminal Investigation ("BCI") testified that T.M.'s sexual assault kit was delivered to the BCI lab on March 19, 2014, for DNA testing. She performed the DNA testing in this case. The vaginal samples revealed a mixture of DNA profiles consisting of T.M. and an unknown male. A sample from T.M.'s underwear had a mixture of DNA profiles consistent with T.M.'s and an unknown male.

{¶ 12} On March 6, 2015, the lab received a DNA sample from Asadi-Ousley. McDaniel compared Asadi-Ousley's DNA sample with the samples in the kit.

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

{¶ 13} At the conclusion of trial, the jury found Asadi-Ousley guilty of both rape counts, felonious assault, and both kidnapping counts. At sentencing, the trial court merged the rape counts into one count (Count 2) and merged the kidnapping counts into one count (Count 7). The trial court sentenced Asadi-Ousley to 15 years to life in prison on each of Counts 2 and 7 and eight years in prison on Count 5. The court ordered that the sentences be served concurrently for an aggregate of 15 years to life in prison.

A. Motion to Continue

{¶ 14} In his first assignment of error, Asadi-Ousley argues the trial court erred when it did not grant his December 29, 2015 motion to continue trial.

{¶ 15} The decision to grant or deny a motion to continue trial is left to the broad and sound discretion of the trial judge, and an appellate court may not disturb the trial court's ruling absent an abuse of discretion. Cleveland v. Washington , 8th Dist. Cuyahoga Nos. 97945 and 97946, 2013-Ohio-367, 2013 WL 485121, ¶ 11, citing State v. Unger , 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." (Citations omitted.) Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams , 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

{¶ 16} A reviewing court determines on a case-by-case basis whether the trial court's denial of a continuance motion was so arbitrary as to deprive the defendant of due process, paying particular attention to the reasons presented to the trial judge at the time the request was denied. Unger at 67, 423 N.E.2d 1078. In determining whether the trial court abused its discretion, an appellate court weighs "any potential prejudice to a defendant [against] concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." Id. The Unger court stated:

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

Id. at 67-68, 423 N.E.2d 1078.

{¶ 17} In this case, Asadi-Ousley had an initial trial date of October 28, 2015. On October 12, 2015, Asadi-Ousley filed a motion to continue the trial date. The trial court granted this motion and set a new trial date of December 2, 2015. On November 29, 2015, Asadi-Ousley filed his second motion to continue trial because defense counsel had not fully recovered from eye surgery on his right eye and had eye surgery scheduled for his left eye on December 4, 2015. Within the motion, defense counsel anticipated he would need 30 days to recover. The trial court granted Asadi-Ousley's motion to continue the second trial date and set a trial date of January 4, 2016. Then on December 29, 2015, Asadi-Ousley filed a third motion to continue trial because defense counsel had not fully recovered from the December 4, 2015 surgery. On January 4, 2016, the trial court addressed Asadi-Ousley's third motion on the record as follows:

THE COURT: [defense counsel], you made a motion to continue the trial once again based on your eyesight once again, is that correct?
[DEFENSE COUNSEL]: That's correct, Your Honor.
THE COURT: We talked about this outside of the presence of the court reporter off the record and you correct me if I'm wrong, [defense counsel], I believe you indicated you could start today, that you are having trouble seeing and you sometimes need a magnifier or magnifying glass?
[DEFENSE COUNSEL]: I'm using my eyeglasses today. I'm improving all the time, I'm just not all the way back.
THE COURT: So what we had discussed outside of your client's presence and not on the record was that I would tell the jury at the beginning when I introduce you that you did have this recent cataract surgery and your eyesight is not 100 percent, so if you seem unsure or unsteady on your feet or it takes you awhile to read something, that's because of your surgery and not to make any inference.
[DEFENSE COUNSEL]: That is correct.
THE COURT: Would that be sufficient for you, [defense counsel]?
[DEFENSE COUNSEL]: Yes. I just have the depth perception problem. I may reach for something that's a little bit further than it appears, so I'm sometimes unsteady on my feet.
THE COURT: So I'll make my remarks, but certainly feel free to say what you would like to say about the situation during the course of your voir dire to the jurors.
[DEFENSE COUNSEL]: Your Honor, I fully discussed everything with my client and I'm-we are prepared to go forward.

{¶ 18} The court denied the motion and Asadi-Ousley went forward with trial.

{¶ 19} A review of this record reveals that Asadi-Ousley's defense counsel affirmatively waived Asadi-Ousley's third motion to continue on the day of trial when he told the trial court that they were, in fact, prepared to go forward that day. Moreover, when applying the Unger factors to the instant case, we cannot conclude that the trial court's denial of Asadi-Ousley's third continuance was unreasonable. The trial court continued trial on two prior occasions at Asadi-Ousley's request, and the multiple court dates caused inconvenience to the state's witnesses who had to travel to Cuyahoga County to testify (T.M. traveled from West Virginia, J.H. traveled from Huron, Ohio, and McDaniel traveled from Richfield, Ohio). The trial court held a brief hearing and inquired in depth of the continuance request. Given these facts, we cannot say that the trial court's decision to deny Asadi-Ousley's third motion for continuance was unreasonable, arbitrary, or unconscionable.

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

B. Sufficiency of the Evidence

{¶ 21} In his second assignment of error, Asadi-Ousley argues there is insufficient evidence to support a finding that he is a sexually violent predator.

{¶ 22} In State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, the Ohio Supreme Court explained the standard for sufficiency of the evidence as follows:

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

{¶ 23} We are mindful that in considering the sufficiency of evidence a certain perspective is required. State v. Eley , 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978). "This court's examination of the record at trial is limited to a determination of whether there was evidence presented, 'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.' " Id. , quoting Atkins v. State , 115 Ohio St. 542, 546, 155 N.E. 189 (1926). It is the minds of the trier of fact, rather than a reviewing court, that must be convinced. State v. Thomas , 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982).

{¶ 24} In the instant case, the trial court found Asadi-Ousley guilty of the sexually violent predator specification as set forth in R.C. 2971.01(H)(1), which defines a "sexually violent predator" as "a person who, on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." R.C. 2971.01(H)(2)(a)-(f) lists the factors that may be considered by the factfinder as evidence tending to indicate that there is a likelihood that the person will engage in the future in one or more sexually violent offenses. It provides:

(a) The person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense or a child-victim oriented offense. For purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction.
(b) The person has a documented history from childhood, into the juvenile developmental years, that exhibits sexually deviant behavior.
(c) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation.
(d) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims.
(e) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim's life was in jeopardy.
(f) Any other relevant evidence.

{¶ 25} Asadi-Ousley argues there is no documented history of past sexually violent offenses, no proof that his behavior is chronic to a degree that it would be likely he would offend again, and no proof he behaved in a manner that could be construed as torturous or ritualistic.

{¶ 26} While Asadi-Ousley has had several prior convictions for violent offenses, the convictions in the instant case were his first for sexually oriented offenses. This court, however, has previously held that the sexually violent predator statute does not require a defendant to have a prior conviction for a sexually oriented offense to be found guilty of a sexually violent predator specification.

State v. Mitchell , 8th Dist. Cuyahoga No. 94287, 2010-Ohio-5775, 2010 WL 4867623, ¶ 26.

{¶ 27} Moreover, in determining that Asadi-Ousley is a sexually violent predator, a review of the record reveals the trial court considered the harm he caused to T.M. and Asadi-Ousley's prior criminal record (convictions for aggravated robbery with a gun, robbery, burglary, and having a weapon while under disability). The court stated:

[B]ased on the facts of this particular case and based on his violent record, I do find him to be a sexually violent predator and find him guilty of the sexually violent predator specification beyond a reasonable doubt.
Obviously aggravated robbery, burglary, having a weapon under disability and robbery are all offenses of a serious nature and the one was with a weapon, a firearm, so obviously that's incredibly serious and in this particular case, he snatched a woman walking down the street at 10:30 or so at night and he didn't just restrain her of her liberty, that would be bad enough, but you actually dragged her into an alley and thereafter threatened her life and saying if she told anybody you would kill her and holding the knife to her throat and scratching her throat, you then raped her.
I know the defense was consent. However, the injuries described by the victim, the bleeding as described by [the state], the injuries as indicated to the hospital personnel when she went to the hospital, the great pain she suffered, the psychological harm she suffered as a result of this very, very violent act would indicate that his behavior is of such a nature that he is likely to re-offend.
So I make that finding beyond a reasonable doubt and I will set this for sentencing at a later date.

{¶ 28} Based on the foregoing, we find sufficient evidence to support the sexually violent predator conviction. Thus, the second assignment of error is overruled.

C. Manifest Weight of the Evidence

{¶ 29} In his third assignment of error, Asadi-Ousley argues that all of his convictions are against the manifest weight of the evidence.

{¶ 30} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 13, citing Thompkins , 78 Ohio St.3d at 390, 678 N.E.2d 541, 1997-Ohio-. The Ohio Supreme Court in State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

[T]he reviewing court asks whose evidence is more persuasive-the state's or the defendants? * * * "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." [ Thompkins at 387, 678 N.E.2d 541 ], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

{¶ 31} Moreover, an appellate court may not merely substitute its view for that of the jury, but must find that " 'in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight grounds is reserved for " 'the exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting Martin .

{¶ 32} We note that when considering a manifest weight challenge, the trier of fact is in the best position to take into account inconsistencies, along with the witnesses's manner, demeanor, gestures, and voice inflections, in determining whether the proffered testimony is credible. State v. Kurtz , 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, 2013 WL 3582078, ¶ 26 ; see also State v. Lilliard , 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385, 2013-Ohio-4906, 2013 WL 5970247, ¶ 93 (in considering the credibility of witnesses on a manifest weight challenge, an appellate court is "guided by the presumption" that the jury, or the trial court in a bench trial, is " 'best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' " Id. , quoting Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984) ). Therefore, we afford great deference to the factfinder's determination of witness credibility. State v. Ball , 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, 2014 WL 1340226, ¶ 36.

{¶ 33} Asadi-Ousley argues the jury and trial court "lost their way" because T.M. is unreliable and lacks credibility. In support of his argument, he refers to her testimony that, on the night of the attack, she had been consuming alcohol and smoking marijuana with friends, she could not recall if there were one or two assailants, she waited several days before going to the hospital, and she suffers from depression. We disagree.

{¶ 34} Asadi-Ousley was found guilty based on the evidence of several witnesses and corroborated by DNA testing. T.M. testified that she was approached from behind on the street by a stranger, forced at knife point into a dark alley, and then struck so violently over the head that she lost consciousness. When she regained consciousness, her shirt was torn open and her pants and underwear were down. She knew that she had been violated sexually. T.M. testified how the rape has adversely affected her psychologically. She suffered from depression and laid in bed for days before deciding to call her mother. Her mother testified as to the phone call she received from T.M., and the hysteria in T.M.'s voice. The nurse who treated T.M. testified to T.M.'s demeanor, pain, bleeding, and visible injuries. Asadi-Ousley's DNA was found on T.M.'s vaginal swabs and underwear. T.M. testified that her only consensual partner was her boyfriend.

{¶ 35} Based on the foregoing, it cannot be said the jury "lost its way" in finding Asadi-Ousley guilty of rape, kidnapping, and felonious assault. It further cannot be said that the trial court "lost its way" in finding Asadi-Ousley to be a sexual predator. This is not the rare case where the trier of fact clearly lost its way and created a manifest miscarriage of justice.

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

D. Merger and Ineffective Assistance of Counsel

{¶ 37} In his fourth and fifth assignments of error, Asadi-Ousley argues the trial court erred when it failed to merge Counts 2 (rape), 5 (felonious assault), and 7 (kidnapping) because the offenses are allied offenses of similar import, and defense counsel was ineffective for failing to argue that these counts should have merged for purposes of sentencing.

{¶ 38} Initially, we note that in order to establish a claim of ineffective assistance of appellate counsel, Asadi-Ousley must establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

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

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

Id. at ¶ 3. The court further explained that

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

Id.

{¶ 40} In this case, we find Asadi-Ousley's ineffective assistance of counsel claim regarding defense counsel's failure to request merger of the rape, felonious assault, and kidnapping offenses at sentencing fails under the second prong of Strickland . For the reasons that follow, Asadi-Ousley cannot show prejudice, or a reasonable probability that but for trial counsel's failure to request a merger, the outcome of the proceedings would have been different.

{¶ 41} Pursuant to R.C. 2941.25(A), "[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." However,

[w]here the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

R.C. 2941.25(B).

{¶ 42} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the court held that if a defendant's conduct supports multiple offenses, the defendant can be convicted of all of the offenses if any one of the following is true (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows the offenses were committed separately, or (3) the conduct shows the offenses were committed with separate animus. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B). Two or more offenses are of dissimilar import within the meaning of R.C. 2941.25(B)"when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable" Id. at paragraph two of the syllabus.

{¶ 43} In this case, Asadi-Ousley argues the rape, kidnapping, and felonious assault offenses were committed with the same animus. He contends that the movement of coming up from behind T.M., putting a knife to her neck, telling her if she screamed he would kill her, and pushing her into an alleyway where the rape and robbery occurred, was done for the purpose of raping her with no separate, identifiable harm.

{¶ 44} After careful review, we disagree with Asadi-Ousley's characterization of the evidence. Significantly, Asadi-Ousley's argument disregards the fact that he struck T.M. on the top of her head with an unidentified object just prior to the commission of the rape. In our view, this conduct unquestionably involved a separate and identifiable harm, apart from T.M.'s kidnapping and the subsequent rape. While the record reflects that the felonious assault offense was committed during the commission of the kidnapping offense, the physical injuries caused by the felonious assault were separate and distinct from the harm caused by Asadi-Ousley's movement of T.M. at knife point. Similarly, while the felonious assault may have been committed to facilitate the rape, it involved a separate harm from the harm that was involved in the commission of the rape. Accordingly, we find Asadi-Ousley's felonious assault was an offense of dissimilar import and, therefore, was not an allied offense subject to merger.

{¶ 45} With respect to the offenses of rape and kidnapping, the Supreme Court of Ohio has acknowledged that "implicit within every forcible rape * * * is a kidnapping" because the victim's liberty is restrained during the act of forcible rape. State v. Logan , 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). In Logan , the court provided the following guidelines for determining whether kidnapping and another offense are allied offenses that should merge prior to sentencing, stating:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

Id. at syllabus.

{¶ 46} Applying these guidelines, the Ohio Supreme Court held in Logan, that the offender's conduct in forcing the victim into an alley before raping her at knife point was committed without a separate animus. The court found that the movement was slight, the detention brief, and the victim was released immediately after the commission of the underlying crime, compelling the court's conclusion that the kidnapping was incidental to the rape. Id. at 135, 397 N.E.2d 1345.

{¶ 47} Although Logan predates Ruff , Ohio courts continue to apply the guidelines set forth in Logan in determining whether kidnapping and another offense were committed with a separate animus, in accordance with the third prong of the Ruff test. State v. Armengau , 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452, 2017 WL 2687434, ¶ 125, citing State v. D.E.M. , 10th Dist. Franklin No. 15AP-589, 2016-Ohio-5638, 2016 WL 4591373, ¶ 143 ; State v. Williams, 7th Dist. Mahoning No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797, ¶ 18 ; State v. Stinnett , 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, 2016 WL 1687031, ¶ 53.

{¶ 48} In arguing the trial court erred by failing to merge his kidnapping and rape convictions, Asadi-Ousley relies extensively on this court's decision in State v. Echols , 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, 2015 WL 8484088. In Echols , victim one was walking home late at night. As she passed a large tree or shrub near East 93rd Street and Woodland Avenue, a person jumped out from the tree and came up behind her. The individual held a knife to her throat and threatened her. He moved her from the sidewalk to behind the tree and raped her. Another attack occurred approximately five years later, involving a different victim. Victim two was unavailable to testify at trial because she had been murdered. Her medical records documented her recounting of events that occurred. She stated that she was walking home when a car pulled up and an unknown individual told her to get into the car or he would hurt her. She complied. She was hit in the head with a brick and raped. Sexual assault kits were performed on both victims. DNA testing revealed that the defendant's DNA was consistent with that of the attacker in both victims. Id. at ¶ 3-5.

{¶ 49} On appeal, Echols argued that each rape conviction should have merged with each kidnapping conviction. Relying on Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 and Logan , 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979), we found that the asportation of victim one was slight, stating:

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

Id. at ¶ 38. We concluded that because "the movement was slight, occurred close in time to the rape, and was done solely to facilitate the rape [,] the trial court erred when it failed to merge the rape and kidnapping counts related to [victim one]." Id. at ¶ 39.

{¶ 50} We contrasted victim one's movement with the movement of victim two, who was abducted from the bus stop. With victim two, the defendant forced her to get into his vehicle, hit her with a brick once in the car, and he drove her away from the area. We found that the "asportation of [victim two] constituted a separate crime for which [defendant] may be separately punished." Id. at ¶ 40.

{¶ 51} After careful consideration, we find Echols to be applicable, but factually distinguishable from the circumstances presented in this case. As with victim one in Echols , the movement of T.M. was slight and occurred close in time to the rape. Analogous to the movement of victim one "from the sidewalk to a tree," the testimony presented in this case established that T.M. was moved from the sidewalk to a nearby alleyway, or "the cut." The record indicates that the alleyway was not far from where T.M. had been walking. Thus, the restraint of T.M. was not prolonged, nor was the movement substantial enough to demonstrate a separate animus for the kidnapping and for the rape under Logan .

{¶ 52} As mentioned above, however, the Logan decision went on to state that "[w]here the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime , there exists a separate animus as to each offense sufficient to support separate convictions." (Emphasis added.) Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345, at syllabus. In this case, T.M. was knocked unconscious during her movement into the alleyway. Although the asportation was limited, Asadi-Ousley's commission of the "dissimilar" felonious assault offense during his movement of T.M. rendered her defenseless and, in our view, subjected her to an increased risk of harm that was separate and apart from that involved in the underlying rape. Under these circumstances, the kidnapping offense ceased to be incidental to the underlying rape from which it might have originated. See State v. Jones , 10th Dist. Franklin No. 15AP-670, 2017-Ohio-1168, 2017 WL 1180625 (holding that defendant's blows to victim's head which knocked her to the floor and rendered her unconscious constituted substantial increases in the risk of harm separate and apart from the force involved in raping a victim); State v. Terrell , 1st Dist. Hamilton No. C-080286, 2009-Ohio-3257, 2009 WL 1900427 (holding that victim was subjected to a substantial increase in risk of harm separate and apart from rape when victim was struck in the face and moved to a nearby grassy area where a rape occurred). Accordingly, we find there was "a separate animus as to each offense sufficient to support separate convictions" for kidnapping and rape.

{¶ 53} Based on the foregoing, we cannot conclude that the trial court committed plain error by failing to merge Asadi-Ousley's convictions for purposes of sentencing. For these same reasons, Asadi-Ousley's ineffective assistance of counsel claim fails under the second prong of the Strickland test. Asadi-Ousley cannot show a reasonable probability that but for defense counsel's failure to request merger of his convictions at sentencing, the result of the proceedings would have been different.

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

{¶ 55} Judgment is affirmed.

LARRY A. JONES, SR., P.J., CONCURS;

MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE ATTACHED OPINION

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

{¶ 56} I respectfully concur in judgment only with the majority's decision to affirm Asadi-Ousley's convictions and sentence. I write separately to briefly address the applicability of Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, to the majority's merger analysis.

{¶ 57} The majority concludes that the facts surrounding victim one are analogous to the instant case, finding that the restraint of T.M. was not prolonged, nor was the movement substantial enough to demonstrate a separate animus. Whereas, I would find that the facts surrounding T.M.'s attack are more analogous to victim two in Echols . The facts in Echols reveal that the defendant forced victim two into a car and drove her to another location, where he committed the rape.

{¶ 58} Here, the inception of the crime was when T.M. was approached from behind by knife point as she was walking down the street. This act caused her to submit to being dragged into a secluded alleyway, behind a beauty supply store (kidnapping), where she was knocked unconscious by a blow to the head and then raped. Specifically, Asadi-Ousley forcibly moved T.M. at knife point from a publicly visible area into a concealed alleyway, behind a beauty supply store, where he was more easily able to perpetrate the rape of an unconscious T.M. T.M. then awoke to find herself on the ground with her lip and nose bleeding, her shirt ripped open, and her pants and underwear pulled down. This movement, just as the movement of victim two, constituted a separate crime for which Asadi-Ousley may be separately punished. The movement was not slight, T.M. was removed from her location and dragged to a secluded area, and the confinement was attempted to be kept secret, subjecting T.M. to a substantial increase in harm separate from the rape.

{¶ 59} While I do not find the asportation was limited, I agree with the majority's conclusion that the offenses do not merge for the purposes of sentencing. As a result, I would affirm the trial court's judgment.

      The sexually violent predator specification was tried before the bench. At the conclusion of trial, the court found Asadi-Ousley guilty of the specification.

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