author: MAYLE, J.

text:
    STATE of Ohio, Appellee v. Aaron DEAN, Appellant
    No. L-16-1301
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: May 4, 2018
    Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
    Karin L. Coble, Toledo, for appellant.
    DECISION AND JUDGMENT
   MAYLE, J.

{¶ 1} The defendant-appellant, Aaron Dean, was indicted on felonious assault, kidnapping, and two counts of rape. Following a bench trial, the Lucas County Court of Common Pleas convicted him of all counts and imposed an aggregate sentence of 16 years in prison. On appeal, Dean argues that his convictions were not supported by legally sufficient evidence and were against the manifest weight of the evidence. He also argues that the two rape convictions should merge with one another, and that the rape and kidnapping convictions should also merge. Finally, Dean challenges the costs imposed by the trial court. For the reasons that follow, we affirm the trial court's judgment in its entirety.

Facts and Procedural History

{¶ 2} The victim in this case, referred to as "I.M.R.," offered the following testimony at trial. I.M.R. is a married, mother of three. Between 8:30 and 9:00 p.m. on April 20, 2016, I.M.R. was walking on Lagrange Street in downtown Toledo, near the Gold Star liquor store, talking on her cell phone with a friend. A person, whom she identified in court as Dean, approached her from behind. When I.M.R. turned to face him, Dean said, "if you don't come with me, I'm going to shoot you out here." Dean showed her a black gun from within his coat.

{¶ 3} I.M.R. hung up on her friend and followed Dean, walking behind him and "hoping he wouldn't shoot" her. Dean led I.M.R. for a block or two down Lagrange, then to an alley which led to the back porch of an abandoned duplex. Dean sat on a chair and ordered I.M.R. to her knees. I.M.R. testified that, "[Dean] told me if I didn't give him oral he's going to shoot me in the head. So I got down and I gave him oral." Dean had an erection and ejaculated into her mouth, which she spat out. Dean then pulled the trigger of the gun, but it did not fire. Dean said, "[o]ops, you almost got killed. * * * [I]f you don't do it again, you going to get killed * * *."

{¶ 4} I.M.R. then "went down there" and performed oral sex on Dean again. While she did, Dean put the gun back into his coat pocket. I.M.R. testified, "I had a lot of thoughts going through my head" including that "he was going to kill me" and "I wasn't leaving that night." I.M.R. decided to fight back and bit down on Dean's penis. She testified, "I tried to bite it off, but my whole body wouldn't let me * * * because I was too weak." Dean screamed and "socked" I.M.R. in the head.

{¶ 5} The two began to fight. As described by I.M.R., she "head butted" and "kneed [Dean] in his stuff." Dean pulled the gun back out of his pocket. I.M.R. reached for the gun and managed to pull the trigger. I.M.R. heard the gun "click" a couple of times. She testified, "I was like, 'damn, you ain't even got no bullets.' He said, '[epithet], your ass is gone' and I tried to run." Dean yanked the gun away from I.M.R., but her finger was stuck in the trigger, causing her skin to rip off. The gun fell. Dean then pulled I.M.R. by the hair and began "socking" her in the head and face with a closed fist. I.M.R. returned Dean's punches with her own and pulled out a 4-inch bread knife from within her pocket. The knife fell to the ground. I.M.R. and Dean each screamed and fled. Dean ran toward the front of the house, and I.M.R. ran toward the back.

{¶ 6} I.M.R. got herself to St. Vincent Medical Center in downtown Toledo. The earliest medical record created that night indicates a time of 10:50 p.m. At that time, I.M.R. reported that she had been raped, that she thought she may have bitten the genitals off of her attacker, and that she thought she had a broken nose. The hospital records confirm a nasal fracture. While at the hospital that night, I.M.R. reported the incident multiple times, to nurses, physicians, and the police.

{¶ 7} Registered Nurse Courtney Whited examined I.M.R. that evening. Whited is a sexual assault nurse examiner ("SANE") who is trained to administer care to sexual assault victims and to collect and secure evidence. Whited described I.M.R. as upset and not very talkative. She observed that I.M.R.'s face was swollen with dried blood below her nose and on her cheeks. Whited testified that "something had definitely happened [to her] at some point during the night." According to Whited's report, I.M.R. told her that an unknown man had forced her at gunpoint to "walk with him * * * for a few streets" and then demanded that she "suck his dick or 'I'll shoot you.' " I.M.R. estimated that the assault lasted about 30 minutes. Whited collected swab samples from inside I.M.R.'s mouth and from around her face. She also took photographs. Whited turned the evidence over to the police.

{¶ 8} The hospital reported the rape to the Toledo Police. Officer Bradley Knapp was dispatched to the hospital and interviewed I.M.R. He described I.M.R. as "very frantic" and "panicky." Because potential felonies were involved, Officer Knapp contacted the police department's investigative services division, which dispatched Detective Diane Trevino. Detective Trevino works in the special victims unit and investigates sexual assault cases. She interviewed I.M.R. and based on I.M.R.'s description of the location, Detective Trevino and Officer Knapp left the hospital in search of the crime scene.

{¶ 9} The officers were able to locate the abandoned duplex and alley off Palmer Street, which intersects with Lagrange. On the cement patio, the officers observed a gun (later identified as a "Ruger air pistol"), an overturned chair, a cell phone (which was later identified as I.M.R.'s phone), a few drops of blood, and a black stocking hat. Detective Trevino called Detective Terry Cousino, who arrived at the scene around 2:00 a.m. Detective Cousino photographed and collected the evidence, including two blood swabs from the porch. I.M.R.'s knife was not among the evidence collected at the scene. The police turned over the evidence to the Ohio Bureau of Criminal Investigations ("BCI") for forensic testing.

{¶ 10} Julie Cox is a forensic scientist with the BCI. Cox is trained to perform examinations for the presence of biological fluids such as semen, saliva, and blood. Cox tested the items in I.M.R.'s rape kit. She identified the presence of seminal fluid and blood on I.M.R.'s oral samples. She also identified blood on the air pistol and more blood from the two samples taken from the porch floor. Logan Schepeler, also with the BCI, is a deoxyribonucleic acid ("DNA") analyst. Schepeler analyzed samples taken from I.M.R.'s right hand, the swab sample from the air gun, the nylon cap, the oral samples taken from I.M.R., and fingernail scrapings. The BCI analyzed that evidence and, based on the agency's findings, it identified Dean as a possible suspect. Specifically, Schepeler concluded that Dean's DNA matched DNA found on the nylon cap and was a significant match to the DNA found on the gun.

{¶ 11} On May 13, 2016, the BCI provided Dean's name as a possible suspect to the Toledo Police. Detective Trevino, in turn, prepared a photo array. The array shows six individuals, and Dean was shown in photograph No. 5. Three days later, Toledo Police Officer Kevin Konz administered I.M.R.'s viewing of the photo array. Konz had no knowledge of the facts of the case, which is standard operating procedure when presenting a photo array to a witness. According to Officer Konz, I.M.R. identified Dean as her attacker "immediately."

{¶ 12} Detective Trevino obtained a search warrant for Dean's DNA as a "confirmatory" measure. At the time, Dean was being held in the Lucas County Jail on an unrelated assault charge. Detective Trevino collected two DNA swabs from Dean and sent those to the BCI for testing. The BCI reported back that Dean's DNA matched the evidence that had been sent there. That evidence was then presented to the Lucas County Grand Jury.

{¶ 13} On June 24, 2016, the Grand Jury indicted Dean on two counts of rape, in violation of R.C. 2907.02(A)(2) and (B), felonies of the first degree; felonious assault, in violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree; and kidnapping, in violation of R.C. 2905.01(A)(4) and (C), a felony of the first degree.

{¶ 14} On July 6, 2016, Detective Trevino interviewed Dean in jail. The recorded interview was played at trial. Detective Trevino advised Dean of his Miranda rights, showed him a picture of I.M.R., and the following exchange took place:

Q. Do you know that female?
A. No ma'am.
Q. You don't think you've ever seen her before?
A. No ma'am.
Q. Never had a sexual relationship with that female?
A. Never had a sexual relationship with that female at all.
Q. * * * Do you know her at all for any reason * * *?
A. She could be a prostitute. She looks like a prostitute.

{¶ 15} Dean admitted that he occasionally had relations with prostitutes, but he was adamant that he was with his girlfriend on April 20, 2016 and that he "ain't never seen" I.M.R. He claimed that he stayed at the home of his girlfriend's mom between April 20 and May 26, 2016, when he was arrested for domestic violence.

{¶ 16} At trial, Dean repeated his claim that he was with his then-girlfriend, N.W., on the evening of April 20, 2016. Dean testified that the two of them attended a family birthday party on Elm Street, along with N.W.'s mother, Barbara. Dean estimated that they were at the party between 8:00 p.m. and 9:30 p.m., when the three of them returned to Barbara's home on Locust Street. Dean spent the night there, and stayed there until he was arrested for assaulting N.W.

{¶ 17} At trial, Dean changed part of his story. Although he previously told Detective Trevino that he did not know I.M.R., he testified at trial that he had a sexual encounter with I.M.R. a "couple of days before" April 20, 2016. Dean claims that he gave I.M.R. fake drugs in exchange for sex, and that the encounter was consensual. According to Dean, he ground up a white candle to look like crack, which he intended to use "to get sex from a drug addict." Dean walked down Lagrange "intending to go have sex with a prostitute if [he saw] one walking down the street." Dean claims he saw I.M.R., and he assumed she was a prostitute because she was standing on the corner of Lagrange which he knew to be frequented by "prostitutes, drug dealers and johns." Dean asked if I.M.R. would "like to exchange oral sex for some dope." Dean testified that the two of them walked down the street for a couple of blocks, then down an alley; that he put on a condom to protect himself from a sexually transmitted disease ; and that I.M.R. performed oral sex on him. Afterward, Dean removed his condom and gave I.M.R. the "dummy dope." According to Dean, it was I.M.R. who was carrying the gun, which she offered to Dean in exchange for "another dope piece." Dean declined the offer and left "quickly before she could find out that the dope was fake."

{¶ 18} Dean admits that his DNA was found inside and outside of I.M.R.'s mouth and that his and I.M.R.'s DNA were on the trigger of the gun. Dean denied any type of physical altercation between himself and I.M.R., and specifically denied that I.M.R. bit his penis.

{¶ 19} N.W. and her mother Barbara testified by subpoena. N.W. testified that Dean came over around 5:30 or 6:00 p.m. on April 20, 2016; that they went to her nephew's birthday party on Elm Street; that they stayed at the party about four and one-half to five hours; and that they returned to her mother's home around 10:30 or 11:00 p.m. N.W. asserted that Dean "stayed with us the whole time." Barbara offered similar testimony, but thought that the three of them left the birthday party a little earlier, around 9:30 or 10:00 p.m.

{¶ 20} The trial court took the matter under advisement. On December 5, 2016, the court found Dean guilty of two counts of rape (fellatio), one count of felonious assault, and one count of kidnapping. In its order, the trial court commented,

[T]he state has proven all of the essential elements of each of the charges beyond a reasonable doubt [and Dean's] version of events does not survive scrutiny. He denies ever having seen [I.M.R.] to Detective Trevino, and denies having any sexual relations with her. Then his DNA is found in her mouth and around her face. He denies any physical altercation, but his DNA is found on the gun. He claims a prostitute, two days earlier, tried to sell him the gun for drugs, but it was all messed up and had no handle. The gun found at the scene obviously has a handle, and although it is some form of air pistol, it looks passably like a handgun. He is a trained boxer, and [I.M.R.'s] face looks like it was treated as a punching bag.

{¶ 21} A sentencing hearing was held on December 12, 2016. The court sentenced Dean to eight years in prison as to Count 1 (rape); eight years as to Count 2 (rape); eight years as to Count 3 (felonious assault), and six years as to Count 4 (kidnapping). It ordered that Counts 1, 2, and 4 be served concurrently, but consecutive to Count 3, for a total prison term of 16 years. The court specifically found that none of the charges were allied offenses of similar import and therefore none of them merged. Through his appointed appellate counsel, Dean appealed. He asserts three assignments of error:

Assignment of Error One : Appellant's convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.
Assignment of Error Two : The trial court erred in failing to merge the two counts of rape, and erred in failing to merge the rape counts with the kidnapping count, thereby violating the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
Assignment of Error Three : The trial court erred in imposing the cost of appointed counsel fees and costs of confinement.

Sufficiency and Manifest Weight of the Evidence

{¶ 22} In his first assignment of error, Dean argues that his convictions were not supported by legally sufficient evidence and were against the manifest weight of the evidence.

{¶ 23} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the evidence in the light most favorable to the state and decide whether any rational trier of fact could have found that the state proved, beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78.

{¶ 24} In determining whether a conviction is based on sufficient evidence, an appellate court does not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks , paragraph two of the syllabus; Yarbrough at ¶ 79 (noting that courts do not evaluate witness credibility when reviewing a sufficiency of the evidence claim). We will not disturb the verdict unless we determine that reasonable minds could not arrive at the conclusion reached by the trier of fact. State v. Treesh , 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001) ; Jenks at 273, 574 N.E.2d 492. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386, 678 N.E.2d 541.

{¶ 25} While sufficiency of the evidence examines whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence's effect of inducing belief. State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386, 678 N.E.2d 541. Under the manifest weight of the evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive-the state's or the defendant's? Id. at ¶ 25. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387, 678 N.E.2d 541.

{¶ 26} "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 fact finder's resolution of the conflicting testimony." Wilson at ¶ 25, quoting Thompkins at 387, 678 N.E.2d 541. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the conviction must be reversed and a new trial must be ordered. Thompkins at 387, 678 N.E.2d 541, citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).

{¶ 27} A conviction should be reversed on manifest weight grounds only in the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, 678 N.E.2d 541, quoting Martin at 175, 485 N.E.2d 717. Moreover, " 'it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.' " State v. Brown , 10th Dist. Franklin No. 02AP-11, 2002-Ohio-5345, 2002 WL 31194302, ¶ 10, quoting State v. Long , 10th Dist. Franklin No. 96APA04-511, 1997 WL 52911 (Feb. 6, 1997).

1. Rape

{¶ 28} With the above framework in mind, we begin with Dean's challenge to the legal sufficiency and manifest weight of the evidence supporting the rape convictions.

{¶ 29} R.C. 2907.02(A)(2) provides that "[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force." "Sexual conduct" includes "fellatio" which occurs when "the mouth or lips come into contact with the penis." R.C. 2907.01(A) ; State v. Brown , 12th Dist. Butler No. CA2011-11-207, 2013-Ohio-1610, 2013 WL 1709608, ¶ 36. "Force" is defined as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1).

{¶ 30} At the close of the state's case, Dean's trial counsel argued that the state's evidence did not establish two separate and differentiated acts of rape. Pursuant to Crim.R. 29(A), Dean moved for an acquittal, as to "either" rape count. The trial court denied the motion, and Dean claims this was error. He argues that I.M.R.'s testimony, even if believed, would support only one act of rape because "the oral sex was not interrupted by any significant intervening event, and [was] committed at the same time, during the same course of conduct."

{¶ 31} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of the evidence. State v. Brinkley , 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. The denial of a motion for acquittal under Crim.R. 29(A)"is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

{¶ 32} The state relies upon the following testimony by I.M.R. to establish that Dean raped her twice:

Q. So he took you onto that abandoned porch, holding * * * the gun * * *. What happened next?
A. [H]e told me if I didn't give him oral he's going to shoot me in the head. So I got down and I gave him oral. I was like, man, just don't shoot me. * * *
Q. When you say oral, do you mean that he made you put your mouth on his penis?
A. Yes.
Q. Okay. So what happened?
A. So then I have him oral. He had an erection. And he pulled the trigger.
Q. On the gun?
A. Uh-huh. And he was like, oops, you almost got killed. And he was like if you don't do it again, you going to get killed. He said don't make me kill you back here and then he was like-
Q. Let me interrupt you. I am sorry. When you said he did it again, did he finish the first time?
A. Finish what?
Q. Did he ejaculate into your mouth?
A. Yes, he had an erection.
Q. And he completed the act, he actually-
A. Yes.
Q. -ejaculated in your mouth?
A. Yes. And I spit it out.
Q. You spit it out?
A. And that's what he-he told me I had to do it again.
Q. And so what did you do when he told you that?
A. Well I went down there. I had a lot of thoughts going through my mind. I just knew I was going to die on this back porch. I was going to end up in this abandoned house. Nobody was going to know what happened to me * * *.

{¶ 33} Examining the evidence in the light most favorable to the state, Dean forced I.M.R. to perform fellatio two distinct times, each under a threat to kill. At the completion of the first rape, Dean ejaculated into I.M.R.'s mouth and withdrew his penis. I.M.R. spat out the ejaculate. A second rape then occurred when Dean, once again, forced his penis into her mouth after threatening to kill her if she did not "do it again." During the second rape, I.M.R. fought back by biting Dean, and a physical fight ensued.

{¶ 34} Dean complains that the state misstated the sequence of events when urging the court to deny his motion to acquit. According to Dean, I.M.R. testified that Dean pulled the trigger of the gun (which did not fire), ejaculated, and then ordered her to perform fellatio again. Dean claims the state incorrectly argued that Dean ejaculated and then pulled the trigger. We find that I.M.R.'s testimony does not support Dean's version of events and, regardless, the order of those specific events is irrelevant. What matters is that I.M.R. testified that Dean penetrated her two separate times after threatening to kill her if she did not comply with his demands. In fact, the second rape occurred after Dean renewed his threat to kill her if she did not "do it again." We reject Dean's argument that the two oral rapes were actually one continuous act without any substantial intervening event.

{¶ 35} We find that I.M.R.'s testimony that she was forced to perform fellatio on Dean two times, "if believed, is sufficient to support each element of rape." State v. Robinson , 6th Dist. Lucas No. L-09-1001, 2010-Ohio-4713, 2010 WL 3820542, ¶ 100 ; State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 53 ; State v. Wampler , 6th Dist. Lucas No. L-15-1025, 2016-Ohio-4756, 2016 WL 3574571, ¶ 58. Moreover, although I.M.R.'s testimony need not be supported by physical evidence or other corroborating testimony, there is DNA evidence linking Dean to the crime. For all of these reasons, we find that each count of rape is supported by legally sufficient evidence.

{¶ 36} Dean also argues that the rape convictions were against the manifest weight of the evidence. He claims that several pieces of evidence demonstrate that Dean and I.M.R. engaged in consensual sex.

{¶ 37} First, Dean argues that Detective Trevino's testimony regarding a "SkyCop" video from outside the liquor store demonstrates that Dean did not kidnap I.M.R. and, therefore, the sex must have been consensual as well. Although the video was not entered into evidence, Detective Trevino testified that I.M.R. is shown talking on her cell phone while crossing the street, but Dean is not visible. Dean argues that his absence from the video proves that I.M.R. followed him voluntarily to engage in sex. We disagree. Assuming that the video shows I.M.R. crossing the street alone, the footage may have been captured before Dean approached her. Regardless, given that the SkyCop video is not in the record, we cannot view it and must presume regularity in the proceedings. Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1989). We certainly cannot find that the rape convictions are against the manifest weight of the evidence based on evidence that is not in the record.

{¶ 38} Dean also complains that the rape convictions should be overturned because I.M.R. is not credible. He claims that I.M.R. "was in fact a prostitute who was upset that the drugs were fake," relying upon his own testimony that I.M.R.

performed fellatio on him for "fake crack" a few days before she was attacked. Dean also claims that I.M.R. "changed her version of facts," and offers one example: a medical report that was prepared by Gordon Bee, R.N., on the night of the rapes. According to that report, I.M.R. said that her attacker "forced her into a car and threatened her with a gun [and stated] 'if she didn't suck his dick he would piss on her.' " The report contradicts three other reports prepared that evening, as well as I.M.R.'s trial testimony and the testimony of two police officers, who testified that I.M.R. was forced to walk to the location of the rapes. I.M.R. testified that she did not remember making the statements attributed to her in Bee's report, and she specifically denied making them to Detective Trevino in a subsequent interview with her.

{¶ 39} Although we consider the credibility of witnesses under a manifest-weight standard, we must, nonetheless, extend special deference to the fact finder's credibility determinations, given that it is the fact finder who has the benefit of seeing the witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v. Fell , 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, 2012 WL 525517, ¶ 14. The trial judge, as finder of fact and the sole judge of the weight of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or none of a witness's testimony. State v. Caudill , 6th Dist. Wood No. WD-07-009, 2008-Ohio-1557, 2008 WL 852626, ¶ 62, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Although we acknowledge, as the trial court did, that the state's case is not free of inconsistencies, we find that none of the purported evidence cited by Dean undermines the trial court's conclusions that (1) the state proved the elements of its rape case beyond a reasonable doubt and (2) Dean's "version of events does not survive scrutiny." As the court noted, Dean is an admitted liar.

{¶ 40} Upon review of the entire record, we find that the trial court could reasonably conclude from the evidence presented that the state proved the offenses of rape beyond a reasonable doubt. We further find that the court, as trier of fact, did not clearly lose its way or create a manifest miscarriage of justice.

2. Kidnapping

{¶ 41} Dean was also found guilty of kidnapping pursuant to R.C. 2905.01(A)(4) which provides that, "(A) No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, * * * [t]o engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will."

{¶ 42} In support of its kidnapping case, the state relied upon I.M.R.'s testimony that Dean removed I.M.R. from the location where he found her, on Lagrange Street outside of the liquor store, under threat of force, for the purpose of engaging in sexual activity against I.M.R.'s will.

{¶ 43} Dean makes no argument to support his conclusion that the kidnapping conviction is not supported by legally sufficient evidence. Instead, Dean simply restates his own version of events and argues that I.M.R. was not credible. In analyzing whether a conviction is based upon sufficient evidence, however, we do not assess whether the evidence is to be believed, but instead, whether the evidence, if believed, would support a conviction. Here, the testimony of I.M.R., if believed, is sufficient to find Dean guilty of kidnapping.

{¶ 44} As for the weight of the evidence, Dean argues that he is more credible than I.M.R. due to her "conflicting statements." But "[a] conviction is not against the manifest weight of the evidence merely because the jury believed the prosecution testimony." State v. Houston , 10th Dist. Franklin No. 04AP-875, 2005-Ohio-4249, 2005 WL 1953057, ¶ 38 (reversed and remanded in part on other grounds). We find that Dean's kidnapping conviction is not against the manifest weight of the evidence.

3. Felonious Assault

{¶ 45} Dean was also convicted of felonious assault. R.C. 2903.11(A)(1) provides that "no person shall knowingly * * * [c]ause serious physical harm to another * * *." "Serious physical harm" is defined as "[a]ny physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain." R.C. 2901.01(A)(5)(e).

{¶ 46} Dean put forth no argument to challenge his felonious assault conviction except to say that "if his convictions for rape and kidnapping were against the manifest weight of the evidence, or were unsupported by sufficient evidence, [then] the conviction for felonious assault would logically also have to be vacated and reversed."

{¶ 47} Upon review of the evidence submitted at the trial below, we find that there was sufficient evidence to find that Dean caused serious physical harm to I.M.R., and the conviction was not against the manifest weight of the evidence. At trial, I.M.R. testified that Dean gave her a fractured nose, lacerations to her face and hands, and a spinal cord injury. I.M.R.'s testimony was corroborated with pictures and medical reports, and the trial court found the state's evidence persuasive, commenting that "[Dean] is a trained boxer, and [I.M.R.'s] face looks like it was treated as a punching bag." In determining whether the state proved the "serious physical harm" element, Ohio appellate courts have held that "[w]here injuries are serious enough to cause [the victim] to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by R.C. 2901.01(A)(5)." (Citations omitted.) State v. Lee , 6th Dist. Lucas No. L-06-1384, 2008-Ohio-253, 2008 WL 203692, ¶ 30. Further, "[w]here the assault causes a bone fracture, the element of serious physical harm is met." Id.

{¶ 48} In sum, we find that all of Dean's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. Dean's first assignment of error is found not well-taken.

Merger of Allied Offenses

{¶ 49} In his second assignment of error, Dean alleges that the trial court erred (1) by failing to merge his rape convictions with one another and (2) by failing to merge his kidnapping conviction with his rape convictions. We review de novo a trial court's ruling as to whether convictions merge under the allied-offenses doctrine. State v. Corker , 10th Dist. Franklin No. 13AP-264, 2013-Ohio-5446, 2013 WL 6569852, ¶ 28, citing State v. Roush , 10th Dist. Franklin No. 12AP-201, 2013-Ohio-3162, 2013 WL 3808173, ¶ 47.

{¶ 50} In its December 5, 2016 judgment entry, the trial court found Dean guilty as to all four counts. It also found, sua sponte and without comment, that none of the convictions were allied offenses of similar import, and therefore none of them merged. At the sentencing hearing, one week later, Dean acknowledged the court's ruling on merger but did not object to it. Dean did, however, urge the court to impose concurrent sentences. The court sentenced Dean to serve eight years for each rape conviction and six years for the kidnapping conviction, to be served concurrently to one another (but consecutively to the eight-year sentence for the felonious assault conviction). Dean's merger arguments are not moot even though the court ordered concurrent sentences. "[E]ven when the sentences are to be served concurrently, a defendant is prejudiced by having more convictions than are authorized by law." State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.

{¶ 51} But, a defendant who fails to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. "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. A defendant must "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 committed plain error by failing to inquire whether the convictions merge for purposes of sentencing." Id. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Accordingly, given that Dean did not raise the issue of allied offenses of similar import in the trial court, we review this issue on appeal for plain error.

{¶ 52} The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution, applicable to the state through the Fourteenth Amendment, "protects against three abuses: (1) 'a second prosecution for the same offense after acquittal,' (2) 'a second prosecution for the same offense after conviction,' and (3) 'multiple punishments for the same offense.' " State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds , Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). R.C. 2941.25 codifies the Double Jeopardy Clause's third protection, which prohibits multiple punishments for the same offense. The statute prohibits multiple convictions for "allied offenses of similar import" arising out of the same conduct. R.C. 2941.25 states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 53} "At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's conduct." Ruff at ¶ 26. This means that the "analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases. But different results are permissible, given that the statute instructs courts to examine a defendant's conduct-an inherently subjective determination." Id. at ¶ 32.

{¶ 54} In Ruff , the Supreme Court of Ohio announced that whenever a court considers whether there are allied offenses that merge into a single conviction, the court "must first take into account the conduct of the defendant. In other words, how were the offenses committed?" Id. at ¶ 25. When considering this overarching question, the court must address three sub-questions: (1) Were the offenses "dissimilar in import," meaning did the offenses involve either separate victims or "separate and identifiable" harm? (2) Were the offenses committed separately? and (3) Were the offenses committed with separate animus? Id. at ¶ 23-25. "An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered." (Emphasis added.) State v. Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12. The defendant bears the burden to establish that R.C. 2941.25 prohibits multiple punishments. State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni , 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

1. The Rape Convictions Do Not Merge

{¶ 55} In support of merging his rape convictions, Dean relies on the same basic argument that he raised in his first assignment of error, i.e. that his actions amount to a continuing course of conduct with no significant break in time or intervening act. We have already rejected this argument as it relates to whether each rape conviction was supported by legally sufficient evidence. Here, Dean argues in the alternative that, even if he could be found guilty of two counts of rape, the convictions must merge because his "conduct constituting the two counts of rape occurred at the same time, were the same act, and were allegedly done to the same victim."

{¶ 56} Turning to the first question posed in Ruff , because the offenses were perpetrated against the same victim, we must consider whether the two rapes caused I.M.R. to suffer "separate and identifiable" harm. We find that they did. Each oral rape caused independent physical injury and exposed I.M.R. to an increased risk of contracting a sexually transmitted disease. Indeed, I.M.R. repeatedly expressed her fear, at the hospital and at trial, that she had been exposed to warts or human immunodeficiency virus ("HIV") from Dean. It may also be said, as a matter of law and common sense, that each rape caused I.M.R. to suffer separate and additional psychological trauma. See State v. Barnes , 68 Ohio St.2d 13, 14, 427 N.E.2d 517 (1981) (J. Celebrezze concurring opinion) ("Each [sexual assault] is a further denigration of the victim's integrity and a further danger to the victim."). We therefore find that each rape caused I.M.R. to suffer separate and identifiable harm.

{¶ 57} We also find that the two rapes were committed separately and with a separate animus, the second and third prongs of the Ruff analysis, which we consider together. In State v. Woods , 6th Dist. Lucas Co. L-13-1181, 2014-Ohio-3960, 2014 WL 4511445, we recognized,

Separate conduct or separate animus may occur when a court determines the defendant at some point broke a temporal continuum started by his initial act. * * * Alternatively, a separate conduct or animus may exist when facts appear in the record that distinguish the circumstances or draw a line of distinction that enables a trier of fact to reasonably conclude separate and distinct crimes were committed. (Internal citations omitted.) Id. at ¶ 35 quoting State v. Nuh , 10th Dist. Franklin No. 10AP-31, 2010-Ohio-4740 [2010 WL 3820583], ¶ 16.

{¶ 58} With regard to whether the offenses were committed separately, "[t]he law in Ohio is clear that multiple separate and distinct acts of penetration will support multiple convictions and sentences, and oral, anal, and vaginal rapes constitute separate and distinct acts." State v. Hall , 6th Dist. Lucas No. L-17-1069, 2018-Ohio-619, 2018 WL 921826, ¶ 10, citing State v. Hernandez , 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, 2011 WL 3274107, ¶ 48 and State v. Pippin , 2017-Ohio-6970, 94 N.E.3d 1186, ¶ 49 (1st Dist.). In Hall , we recently held that "whether [the defendant] raped [the victim] on only two occasions over a one-year period * * * or whether, for instance, he penetrated her both anally and vaginally on one occasion, two separate and distinct rapes were committed and two sentences were properly imposed."

{¶ 59} Dean concedes the basic premise that different forms of penetration (i.e. vaginal, anal, or oral) will support multiple convictions. He argues that his rape convictions should merge because his alleged conduct involves "the same act," i.e., fellatio, and was "part of a continuing course of conduct." This same argument was made by the defendant in State v. Pippin , who was also found guilty of two counts of oral rape that were perpetrated in close succession to the other. Like here, the defendant argued that both counts relate to "the same act, same day, same location, and same victim." The First Appellate District found that the convictions did not merge,

[T]he record demonstrates that, although both rape counts involved the same type of sexual activity-fellatio-and were committed within a short time of each other, there were two separate and distinct acts of penetration, separated by significant intervening acts. See State v. Jones , 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997). The first act of rape occurred while the girl was apparently semi-conscious. That act was followed by a withdrawal from the girl's mouth, the girl's apparent loss of consciousness, and then the defendant's forceful penetration of the unconscious girl's mouth. Id. at ¶ 49.

{¶ 60} Likewise, in State v. J.M. , 10th Dist. Franklin No. 14AP-621, 2015-Ohio-5574, 2015 WL 9595417, the defendant was found guilty of two counts of anal rape and two counts of vaginal rape, which stemmed from one incident in which the defendant alternated between forcing his penis into the victim's anus and vagina. The trial court merged all four convictions into one, finding that the offenses were based on one act with the same animus. The court of appeals found multiple errors, one for merging the anal rapes with the vaginal rapes because the rapes were "committed to a different body part." Id. Of particular relevance to this case, the court also found that the two counts of anal rape did not merge with one another and the two counts of vaginal rape did not merge with one another. The court found that the offenses did not merge because the record demonstrated that intervening acts separated the instances of penetration. In the court's words, "[w]here [the defendant] was made aware of the hurt he was causing and where there was a period of cessation, each renewed penetration was committed separately." Id. at ¶ 53.

{¶ 61} We similarly reject Dean's claim that the "only event of time separating the two counts was [his] ejaculation and the victim's spitting out the ejaculate." Even if we assume, for the sake of argument, that those events are insufficient to demonstrate a "period of cessation" between the two rapes, in this case there is additional evidence indicating a bright line of distinction separating two rape offenses, i.e. his threat to I.M.R. that she "do it again" or "get killed." We find that the trial court had a reasonable basis to conclude that separate and distinct crimes were committed and that Dean acted with a separate animus as to each. Accordingly, the trial court did not commit plain error by failing to merge the rape convictions.

2. The Rape Convictions Do Not Merge with the Kidnapping Conviction

{¶ 62} Next, we now turn to the issue of whether the kidnapping and rape convictions should merge.

{¶ 63} First, we consider whether the kidnapping caused I.M.R. to suffer harm that was "separate and identifiable" from the two rapes. Generally speaking, the farther the movement or the longer the duration of the restraint, the more likely it is that a kidnapping resulted in harm that is "separate and identifiable" from another offense. See State v. Henry , 37 Ohio App.3d 3, 523 N.E.2d 877 (6th Dist.1987) ("The farther the victim was removed from Bowling Green and the longer she was restrained, the less likely it was that she would be returned safely."); State v. Rivera , 10th Dist. Franklin No. 12AP-691, 2014-Ohio-842, 2014 WL 890935, ¶ 32 ("Continuously driving the victim around the city to different locations increased the chances that she would find it necessary to escape by jumping out of a moving vehicle or that one of the men would push her out of the moving vehicle if she attempted to resist.").

{¶ 64} Here, the record shows that Dean kidnapped I.M.R. at gunpoint around 8:30 or 9:00 pm, led her for a "couple" of blocks to an alley and then to a "very dark" patio adjacent to an abandoned duplex, where he raped her, twice. I.M.R. eventually escaped and arrived at the hospital for treatment around 10:50 p.m. I.M.R. testified about the panic she experienced as she was forced to follow Dean down the street ("I just knew I was going to die") and her fear during the second assault ("I just knew I was going to end up in this abandoned house. Nobody was going to know what happened to me * * *. Nobody was looking for me.").

{¶ 65} Given the length of Dean's forced movement of I.M.R. down several city blocks, the overall duration of the restraint, and his confinement over I.M.R. in a dark patio of an abandoned house, we find that I.M.R. suffered harm as a result of the kidnapping that was "separate and identifiable" from the rapes.

{¶ 66} For similar reasons, we find that the kidnapping was committed separately and with separate animus. Dean argues that the kidnapping was merely incidental to the rapes because it was done for the sole purpose of raping I.M.R. He relies on State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), in which the court held:

In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines:
(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.

{¶ 67} In Logan , the defendant forced the victim into an alley and down a flight of stairs before raping her at knifepoint. The court found that the crimes were committed without a separate animus because the movement was slight, the detention was brief, and the victim was released immediately after the commission of the underlying crime. Id. at 135, 397 N.E.2d 1345. As other courts have recognized, however, kidnapping is not incidental to rape where the confinement and restraint are more prolonged. Rivera at ¶ 29 (Confinement and restraint for 30 to 40 minutes while the assailants drove the victim around the city constitutes prolonged, long-term restraint); State v. Wade , 10th Dist. Franklin No. 10AP-159, 2010-Ohio-6395, 2010 WL 5543880, ¶ 74 ("The kidnapping was not merely incidental to the rape, which lasted five or ten minutes, but also involved prolonged restraint of 20 to 30 minutes.") (Reversed on sex offender classification grounds.); State v. Broom , 40 Ohio St.3d 277, 290, 533 N.E.2d 682 (1988). (The restraint and asportation of the victim at knifepoint, in a car, to a location over a mile away can hardly be considered merely incidental to the rape and murder of the victim.").

{¶ 68} For example, in State v. Echols , 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, 2015 WL 8484088 there were two separate victims of rape and kidnapping. The court of appeals found that the two convictions merged as to one victim, but not the other. The defendant attacked one victim by jumping out from behind a tree, held a knife to her throat, and moved her from the sidewalk to behind the tree where he raped her. The court found the "movement was done in conjunction with the rape, and was not separated by any significant length of time or distance." Id. at ¶ 38. The defendant forced the other victim into his car, hit her with a brick and drove her to a location where he raped her. The court found "the asportation of [victim two] constituted a separate crime for which [the defendant] may be separately punished." Id. at ¶ 40.

{¶ 69} Here, Dean moved I.M.R. for several city blocks at gunpoint and then confined her in a secretive location, on a dark patio of an abandoned house. Although the overall length of the restraint was not established with certainty, the testimony and other evidence suggests that Dean held I.M.R. for over an hour, and perhaps over two hours. We find this evidence demonstrates that the kidnapping was committed separately and with separate animus, and was not merely incidental to the rapes.

{¶ 70} Accordingly, we find Dean's second assignment of error not well-taken.

Costs of Confinement and Appointed Counsel

{¶ 71} In this third assignment of error, Dean challenges the trial court's imposition of the cost of his appointed trial counsel and confinement.

{¶ 72} Prior to imposing the costs of confinement and assigned counsel, the trial court must first find that the defendant has, or will have, the ability to pay. With regard to the cost of confinement, R.C. 2929.18(A)(5)(a)(ii) requires that the trial court impose against all convicted defendants a financial sanction for the costs of confinement in a state institution "to the extent he is able to pay." Likewise, R.C. 2941.51(D) provides that the trial court can order the defendant to pay the cost of appointed counsel only if the court determines that the offender "has, or reasonably may be expected to have, the means to meet some part of the costs of the services rendered."Id. Although the court is not required to conduct a hearing on a defendant's ability to pay the costs, the record must contain some evidence that the court considered the defendant's financial ability to pay. State v. Maloy , 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, 2011 WL 7029648, ¶ 13.

{¶ 73} In its judgment entry, the trial court said that Dean was "found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law." Dean argues that the trial court recited the proper language prior to imposing the costs of confinement and assigned counsel but "no evidence shows that it actually considered whether [he] had the ability to pay." We disagree.

{¶ 74} Our standard of review on this issue is whether the imposition of costs and financial sanctions was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b). State v. Farless , 6th Dist. Lucas Nos. L-15-1060, 2016-Ohio-1571, 2016 WL 1547098, ¶ 4 ("An appellate court may not modify a financial sanction unless it finds by clear and convincing evidence that it is not supported by the record or is contrary to law."). At sentencing, the trial court specifically stated that it had considered the record and based its conclusion on Dean's "youth and employability." The record supports the court's judgment. While Dean may argue that he lacks employment skills, a "Public Safety Assessment," indicates that Dean was employed as a painter at the time of his arrest, earning $500 per week. And although Dean also complains that his age at the time of his release, 39, will preclude him from finding much gainful employment, we find that he will nonetheless have many employable years ahead of him. While we agree that his convictions and incarceration may present a challenge to finding employment at that time, his relative young age and his work experience as a painter "render him employable and reasonably likely to be able to pay the costs imposed by the court." State v. Duhart , 6th Dist. Lucas No. L-16-1283, 2017-Ohio-7983, 2017 WL 4334182, ¶ 33.

{¶ 75} We find that the imposition of costs here was not contrary to law. We therefore find that Dean's third assignment of error is not well-taken.

Conclusion

{¶ 76} We find that (1) Dean's convictions were supported by sufficient evidence and were not against the manifest weight of the evidence; (2) the trial court did not err in denying Dean's motion for acquittal; (3) the court did not commit plain error in deciding not to merge the rapes with one another and the kidnapping conviction with his rape convictions; and (4) the trial court did not err in imposing the costs of confinement and appointed counsel against Dean. We, therefore, find Dean's three assignments of error not well-taken and affirm the December 12, 2016 judgment of the Lucas County Court of Common Pleas.

Dean is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

James D. Jensen, J.

CONCUR.

      As noted by both parties, although Logan predates State v. Ruff by more than three decades, Ohio courts continue to apply the guidelines set forth in Logan, in accordance with the third prong of the Ruff test, when determining whether kidnapping and another offense were committed with a separate animus. See e.g., State v. Armengau , 2017-Ohio-4452, 93 N.E.3d 284, ¶ 125 (10th Dist.) ; State v. D.E.M. , 10th Dist. Franklin No. 15AP-589, 2016-Ohio-5638, 2016 WL 4591373, ¶ 143 ; State v. Williams , 2015-Ohio-4100, 43 N.E.3d 797, ¶ 18 (7th Dist.) ; State v. Stinnett , 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, 2016 WL 1687031, ¶ 53.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    Anne ESCHBORN, Plaintiff-Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
    No. 17AP-217
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on May 8, 2018
    On brief: Engler Law Firm, and David L. Engler, Boardman, for appellant. Argued: David L. Engler.
    On brief: Michael DeWine, Attorney General, Eric A. Walker, and Stacy Hannan, Columbus, for appellee. Argued: Stacy Hannan.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiff-appellant, Anne Eschborn, appeals the judgment of the Ohio Court of Claims granting Civ.R. 56(C) summary judgment to defendant-appellee, Ohio Department of Transportation ("ODOT"), in an R.C. 4112.01, et seq. gender discrimination lawsuit against the state. The Court of Claims held that Eschborn could not meet her burden of proof of her prima facie case of discrimination. For the reasons that follow, we reverse.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} Eschborn began working at ODOT as an unclassified, seasonal Highway Tech 1 employee on January 12, 2015. ODOT terminated her employment on February 12, 2015. During her one-month tenure with ODOT, Eschborn's work was assigned by ODOT staff at the Gustavus post and in her role as a Highway Tech 1 she worked alongside three male employees. Eschborn operated a truck that plowed snow and spread salt on the roads within ODOT's jurisdiction, patched potholes, "flagged," washed trucks, and swept the truck bays. (Eschborn Dep. at 7.) While she worked for ODOT, she was the only female employee at the Gustavus post.

{¶ 3} Eschborn contends that ODOT gave multiple reasons for her termination. Initially, she was told it was due to lack of work. After her termination, however, Eschborn received a letter from ODOT's director stating she had been terminated for not performing up to the standards expected of the position. Additionally, she was told she was terminated for her alleged use of foul language and sexual harassment.

{¶ 4} Eschborn admits that she was "making a joke" when she said to her coworkers that her former boss did not listen to her, "because I have tits and a pussy." (Eschborn Dep. at 43.) She also admits that she told one of her coworkers to "bite me" after he was repeatedly "badgering" her regarding her performance of her job duties. (Eschborn Dep. at 48-49.)

{¶ 5} On March 7, 2016, Eschborn filed a complaint in the Court of Claims alleging that ODOT terminated her employment because of her gender, in violation of R.C. 4112.01, et seq.

II. ASSIGNMENT OF ERROR

{¶ 6} Eschborn presents for our review a single assignment of error:

Plaintiff-appellant assigns an error that the trial court improperly granted summary judgment to defendant-appellee. More specifically, plaintiff-appellant maintains that the trial court, in violation of basic rules relating to summary judgment practice, made factual determinations that should have been made at a trial of this action.

III. LAW AND DISCUSSION

A. Standard of Review

{¶ 7} The Court of Claims granted ODOT's motion for summary judgment pursuant to Civ.R. 56(C), which requires that:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

{¶ 8} In Rose v. Ohio Dept. of Rehab. & Corr. , 173 Ohio App.3d 767, 2007-Ohio-6184, ¶ 18, 880 N.E.2d 508 (10th Dist.), this Court described its role in reviewing motions for summary judgment decided by trial courts:

Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162, 703 N.E.2d 841. When reviewing a trial court's decision granting summary judgment, we conduct an independent review of the record, and the appellate court "stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103, 701 N.E.2d 383.

{¶ 9} When reviewing an appeal of an order granting a motion for summary judgment, this Court uses the same standard of review as the trial court. Freeman v. Brooks , 154 Ohio App.3d 371, 2003-Ohio-4814, ¶ 6, 797 N.E.2d 520 (10th Dist.), citing Maust v. Bank One Columbus, N.A. , 83 Ohio App.3d 103, 107, 614 N.E.2d 765 (10th Dist.1992), jurisdictional motion overruled , 66 Ohio St.3d 1488, 612 N.E.2d 1244 (1993). To prevail on a motion for summary judgment, the moving party must demonstrate that, when the evidence is construed most strongly in favor of the nonmoving party, no genuine issue of material fact remains to be litigated and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C) ; Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). A genuine issue of material fact exists unless it is clear that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Williams v. First United Church of Christ , 37 Ohio St.2d 150, 151, 309 N.E.2d 924 (1974). Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously, with any doubts resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-59, 604 N.E.2d 138 (1992).

{¶ 10} A party seeking summary judgment for the reason that a nonmoving party cannot prove its case bears the initial burden of informing the trial court of the basis for the motion and it must identify those parts of the record that demonstrate the absence of a genuine issue of material fact on the elements of the nonmoving party's claims. Dresher v. Burt , 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264 (1996). The moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party has no evidence to support its claims. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party satisfies its initial burden, then the burden shifts to the nonmoving party to set forth specific facts showing there is a genuine issue for trial. Civ.R. 56(E) ; Dresher at 293, 662 N.E.2d 264. The nonmoving party may not rest on the mere allegations or denials of its pleadings, but must respond with specific facts showing there is a genuine issue for trial. Civ.R. 56(E) ; Dresher at 293, 662 N.E.2d 264. If the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.

B. Assignment of Error

{¶ 11} Eschborn argues that the Court of Claims "made factual determinations that should have been made at a trial of this action" and thus improperly granted summary judgment. (Eschborn Brief at 4.) R.C. 4112.02 prohibits discrimination based on a plaintiff's gender and provides:

It shall be unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex , military status, national origin, disability, age or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.

(Emphasis added.)

{¶ 12} The Supreme Court of Ohio has explained that discrimination actions under federal and state law each require the same analysis. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. , 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981) ; Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. , 61 Ohio St.3d 607, 609-10, 575 N.E.2d 1164 (1991). Ohio courts may look to both federal and state courts' statutory interpretations of both federal and state statutes when determining the rights of litigants under state discrimination laws. Dautartas v. Abbott Laboratories , 10th Dist. No. 11AP-706, 2012-Ohio-1709, 2012 WL 1344030, ¶ 24, citing Miller v. Potash Corp. of Saskatchewan, Inc. , 3d Dist. No. 1-09-58, 2010-Ohio-4291, 2010 WL 3529248, ¶ 16.

{¶ 13} The framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) is the basis for analyzing discrimination claims under both state and federal law. Dautartas. A plaintiff claiming discrimination in employment must first demonstrate a prima facie case of discrimination. McDonnell Douglas at 802, 93 S.Ct. 1817. A plaintiff must prove discriminatory intent by either direct or indirect evidence. Gismondi v. M & T Mtg. Corp. , 10th Dist. No. 98AP-584, 1999 WL 257791 (Apr. 13, 1999). A plaintiff may directly establish a prima facie case of discrimination by presenting evidence of any nature to show that the adverse employment action taken by the employer was more likely than not motivated by discriminatory intent. Id., citing Mauzy v. Kelly Servs., Inc. , 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996). Eschborn has presented no direct evidence of discrimination. A plaintiff may indirectly establish a prima facie case of discrimination "by showing that: (1) he or she was a member of a statutorily protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class." Tessmer v. Nationwide Life Ins. Co. , 10th Dist. No. 98AP-1278, 1999 WL 771013 (Sept. 30, 1999), citing Kohmescher v. Kroger Co. , 61 Ohio St.3d 501, 594, 575 N.E.2d 439 (1991) (indicating that the above analysis applies to gender discrimination cases brought under R.C. 4112.02 ). See also Goad v. Sterling Commerce, Inc., 10th Dist. No. 99AP-321, 2000 WL 756386 (June 13, 2000), following McDonnell Douglas.

{¶ 14} Termination of employment is by law considered to be an adverse employment action. Tessmer ; Crady v. Liberty Natl. Bank & Trust Co. of Indiana , 993 F.2d 132, 136 (7th Cir.1993).

{¶ 15} If a plaintiff establishes a prima facie case, a burden shifting occurs, causing the employer to have to articulate some legitimate, nondiscriminatory reason for the adverse employment action. If the employer satisfies this burden, the burden shifts back to the plaintiff to show "that the proffered reason was not the true reason" for the adverse employment action. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This is has been referred to as a "pretense" for the offending action. See, e.g., Bogdas v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 09AP-466, 2009-Ohio-6327, 2009 WL 4456554, ¶ 15.

{¶ 16} The Court of Claims found that Eschborn failed to present a prima facie case of discrimination. The Court of Claims determined that Eschborn could satisfy the first three elements of her prima facie case but could not satisfy the last element because the evidence was insufficient to support the conclusion that a person outside the protected class replaced her or that other comparable, non-protected persons were treated more favorably.

{¶ 17} In her deposition, Eschborn testified that, to her knowledge, another ODOT employee, "Tiny," was sent to Gustavus after she left. Eschborn did not know Tiny's real name, only his nickname. He worked from ODOT's Cortland location. Eschborn stated that she had worked one day filling potholes with Tiny, but he was driving the truck and she was flagging so she did not speak to him much.

{¶ 18} The Court of Claims weighed the evidence and made credibility determinations on summary judgment concerning the circumstances of Eschborn's replacement. The Court of Claims characterized Eschborn's testimony about Tiny as evidence of a redistribution of work, rather than evidence that he replaced her. This fact must be established at a trial (trials in the Court of Claims are limited to trials by the court and not by a jury), since reasonable minds could differ on this testimony before it is taken in context with a fully developed record through pretrial discovery, and the determination of this fact is material to Eschborn's claim for discrimination. Civ.R. 56. Also, there is evidence in the record to support a showing that Eschborn was treated differently than similarly situated male employees, all of whom commonly used foul language in the workplace. And Eschborn testified that initially she was told that there was no work to do because there was no snow. But approximately two days later, when she called her supervisor to ask if she would be called back, he told her she was being terminated for using foul language and sexual harassment. Subsequently, she received a letter from ODOT's director explaining she was terminated because she had "not been performing up to the standards expected for [the] position." (Def.'s Ex. A, attached to Eschborn Dep.)

{¶ 19} The Court of Claims also weighed the evidence regarding dissimilar treatment when it focused on Eschborn's testimony that she was not aware of any time someone was offended by the use of foul language in the workplace, especially when ODOT did not terminate the employment of any of the male employees for using foul language. The Court of Claims appears to have disregarded Eschborn's testimony that a reason she was given at one point for termination of her employment was her use of foul language even though foul language was regularly used by all the employees and she was the only female. The Court of Claims appears to not have considered all the evidence or to have determined credibility or weighed some evidence as more important and disregarded other evidence as less or not important in reaching summary judgment for ODOT. This would be permissible at trial, but it is not permissible on summary judgment. Nationwide Mut. Ins. Co. v. Am. Elec. Power , 10th Dist. No. 08AP-339, 2008-Ohio-5618, 2008 WL 4762978, ¶ 29, citing Santho v. Boy Scouts of Am. , 168 Ohio App.3d 27, 2006-Ohio-3656, 857 N.E.2d 1255, ¶ 16 (10th Dist.).

{¶ 20} The Court of Claims erred when it determined that Eschborn failed to make a prima facie case for employment discrimination by finding that she failed to provide evidence that she was replaced by someone outside the protected class or that ODOT treated comparable nonprotected persons more favorably than Eschborn. Eschborn testified that she was replaced by "Tiny," a male and a person not in her protected class (female). And Eschborn testified that the male employees were treated more favorably than she was because their employment was not terminated for using foul language. ODOT cannot show that no evidence exists in the record, taken in a light most favorable to Eschborn, to support a prima facie case for her discrimination claim. And ODOT has not offered evidence that would sustain its burden on summary judgment that it terminated Eschborn's position for a nondiscriminatory reason, so as to require Eschborn to offer evidence of pretense such that "the proffered reason was not the true reason." Texas Dept. at 256, 101 S.Ct. 1089. To be entitled to summary judgment, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. The Court of Claims erred in granting ODOT's motion for summary judgment.

{¶ 21} We note that, during oral argument to this Court, ODOT argued that Eschborn's testimony about her replacement was hearsay and that the Court of Claims could not consider it on summary judgment because "[w]hen ruling upon a motion for summary judgment, a trial court only considers admissible evidence." Guernsey Bank v. Milano Sports Ents., LLC , 177 Ohio App.3d 314, 2008-Ohio-2420, 894 N.E.2d 715, ¶ 59 (10th Dist.). Eschborn testified at one point that someone told her that Tiny had replaced her. At another point, Eschborn testified that "[t]o my knowledge, Tiny went up there." (Eschborn Dep. at 49.) When asked to clarify, "[s]o to your knowledge, he replaced-he was sent up to Gustavus after you left?" She responded "Yes." (Eschborn Dep. at 50.)

{¶ 22} "Hearsay is any statement, other than the one which is made by the declarant at trial, which is offered in evidence to prove the truth of the matter asserted." Fannie Mae v. Bilyk , 10th Dist. No. 15AP-11, 2015-Ohio-5544, 2015 WL 9594027, ¶ 13. ODOT failed to object to all or a part of Eschborn's testimony before the Court of Claims and cannot now assert error without having given the Court of Claims a chance to consider the objection to the evidence offered. Since no objection was raised before the Court of Claims, ODOT has waived this argument for appeal purposes. Even upon a de novo review we find no error in the evidence being a part of the record considered by the Court of Claims. See Leonard v. MBB Partnership , 10th Dist. No. 15AP-956, 2016-Ohio-3534, 2016 WL 3405567, citing Citizens Banking Co. v. Parsons , 10th Dist. No. 11AP-480, 2014-Ohio-2781, 2014 WL 2927444 ; Reasoner v. Columbus , 10th Dist. No. 04AP-800, 2005-Ohio-468, 2005 WL 289574 ; New Falls Corp. v. Russell-Seitz , 10th Dist. No. 08AP-397, 2008-Ohio-6514, 2008 WL 5197159.

IV. CONCLUSION

{¶ 23} The Court of Claims erred in granting ODOT's motion for summary judgment. Accordingly, we sustain Eschborn's assignment of error and reverse the judgment of the Ohio Court of Claims.

Judgment reversed and cause remanded.

KLATT and SADLER, JJ., concur.


author: Myers, Presiding Judge.

text:
    Seth MCLAUGHLIN, and Lisa McLaughlin, Plaintiffs-Appellants, v. ANDY'S COIN LAUNDRIES, LLC, Dexter Laundry, Inc., Dexter Financial Services, Inc., Century Laundry Distributing, Inc., and Robertshaw Controls Company, Inc., Defendants-Appellees.
    NO. C-170198
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: May 9, 2018
    Bieser, Greer & Landis, LLP, James H. Greer and Christina M. Flanagan, Dayton, for Plaintiffs-Appellants,
    Stephen A. Bailey, Cincinnati, for Defendant-Appellee Andy's Coin Laundries, LLC,
    Isaac Wiles Burkholder & Teetor, LLC, William B. Benson and Mark C. Melko, Columbus, for Defendants-Appellees Dexter Laundry, Inc., Dexter Financial Services, Inc., Century Laundry Distributing, Inc., and Robertshaw Controls Company, Inc.
    OPINION.
   Myers, Presiding Judge.

{¶ 1} Plaintiffs-appellants Seth and Lisa McLaughlin appeal from the trial court's entry granting summary judgment to defendants-appellees Andy's Coin Laundries, Inc., ("Andy's") Dexter Laundry, Inc., Dexter Financial Services, Inc., Century Laundry Distributing, Inc., (collectively referred to as "Dexter") and Robertshaw Controls Company, Inc., ("Robertshaw") on the McLaughlins' claims for negligence, products liability, spoliation, and loss of consortium.

{¶ 2} Finding no merit to the McLaughlins' argument that the trial court's grant of summary judgment was in error, we affirm the trial court's judgment.

Factual Background

{¶ 3} On October 14, 2014, Seth McLaughlin took a comforter to a laundromat owned by Andy's. McLaughlin placed the comforter and detergent inside a front-loading washing machine, inserted coins into the machine, and initiated a wash cycle. Approximately 20 minutes later, McLaughlin noticed that the machine was still in the wash phase of the cycle and that a display on the front of the machine was flashing the message "F-10." Through the clear door on the front of the machine, McLaughlin could see that the machine contained sudsy water and that its drum continued to slowly rotate as the error message flashed. McLaughlin inserted more coins into the machine, but the error message remained. Unaware of what an "F-10" error was, McLaughlin sought help from two other patrons in the laundromat, Anthony Jones and Sharon Gill. Jones and Gill both regularly frequented Andy's laundromat, but neither had ever seen that particular error message.

{¶ 4} McLaughlin, Jones, and Gill attempted to push the machine's emergency stop button numerous times, but the machine continued to spin and its door remained locked. McLaughlin noticed that a sign on the wall contained a telephone number, and he asked Jones and Gill if he should call the listed number. After they told him that he would not get a response and would be forced to leave a voicemail, he elected not to call. Jones told McLaughlin that he had seen other patrons "pop open" washing machine doors when a machine malfunctioned, and he offered to retrieve a screwdriver from his car and use it to open the locked door of the machine. McLaughlin agreed to Jones's suggestion. Jones retrieved the screwdriver and used it to pry open the machine door.

{¶ 5} The machine's drum continued to spin after Jones opened the door, although no water or suds spilled out. McLaughlin waited one to two minutes while the machine spun, and then, believing he could safely remove the comforter, used his left hand to grab a part of it that had started to come out of the machine. The comforter was wet and heavy. After losing his grip, McLaughlin reached into the machine and grabbed the comforter with his right hand. The comforter began to wrap around McLaughlin's arm up to his elbow, and his arm was pulled into the machine as the drum continued to turn. McLaughlin felt what he described as a "violent pop" as his wrist was crushed and disconnected internally from his arm. Unable to free himself, he shouted for help. Jones pulled McLaughlin out of the machine.

{¶ 6} As a result of the accident, McLaughlin's hand was amputated at the wrist.

{¶ 7} The front of the washing machine bore a warning label that read, "Warning. Risk of serious injury. Do not try to open door when: the drum is still turning; you see water in the window; any cycle light is still on." The warning further stated, "If power is interrupted, there will be a 2 to 3 minute delay before the door can be opened." The warning label also contained an image of a reaching hand, with a line crossing out the hand, indicating that users should not place their hands in a moving machine. In his deposition, McLaughlin did not dispute the presence of the warning label, but testified that he did not recall seeing it on the machine.

{¶ 8} The washing machine used by McLaughlin was manufactured, financed, and sold by Dexter. Robertshaw had manufactured the machine's control panel.

{¶ 9} Seth and Lisa McLaughlin filed suit against Andy's, Dexter, and Robertshaw, asserting claims for negligence, products liability, spoliation, and loss of consortium. All defendants filed motions for summary judgment, which were granted by the trial court.

Summary Judgment

{¶ 10} In one assignment of error, the McLaughlins argue that the trial court erred in granting summary judgment to all defendants on all claims for relief.

{¶ 11} We review a trial court's grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriately granted when there exists no genuine issue of material fact, the party moving for summary judgment is entitled to judgment as a matter of law, and the evidence, when viewed in favor of the nonmoving party, permits only one reasonable conclusion that is adverse to that party. State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

1. Negligence

{¶ 12} The McLaughlins asserted a negligence claim against Andy's alleging that Andy's owed a duty to Seth McLaughlin as a business invitee to maintain its facility in a reasonably safe condition. They argued that Andy's breached that duty by failing to maintain the washing machine at issue in a reasonably safe condition and by failing to provide an on-site personnel or telephone number with a live representative to assist patrons, which forced McLaughlin to resort to self-help to retrieve his comforter.

{¶ 13} Andy's argues that summary judgment was appropriately granted on the negligence claim because the open and obvious danger posed by the rotating drum in the washing machine obviated any duty of care owed to McLaughlin. The McLaughlins contend that an issue of fact exists as to whether the danger posed by the washing machine was open and obvious.

{¶ 14} A business owner owes its invitees a duty to maintain the premises in a reasonably safe condition.

Esterman v. Speedway LLC , 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, 2015 WL 929413, ¶ 6. But "[w]here a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises." Lang v. Holly Hill Motel, Inc. , 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 11, quoting Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, syllabus. Invitees are reasonably expected to discover and protect themselves against such dangers. Esterman at ¶ 6. An open and obvious danger is one that is not "hidden, concealed from view, or undiscoverable upon ordinary inspection." Id. at ¶ 7, quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No. 10AP-612, 2011-Ohio-2270, 2011 WL 1842245, ¶ 12.

{¶ 15} Typically, whether a danger is open and obvious is a question of law. Callentine v. Mill Invests., LLC , 5th Dist. Tuscarawas No. 2017 AP 06 0014, 2017-Ohio-8634, 2017 WL 5565502, ¶ 40. But the presence of attendant circumstances can create an issue of fact. Esterman at ¶ 11. Attendant circumstances are "distractions that contribute to an injury by diverting the attention of the injured party and reduce the degree of care an ordinary person would exercise at the time." Galinari v. Koop , 12th Dist. Clermont No. CA2006-10-086, 2007-Ohio-4540, 2007 WL 2482673, ¶ 21.

{¶ 16} Here, the rotating drum posed an open and obvious danger. It was not hidden or concealed, and it was immediately apparent by looking at the machine. Moreover, the machine contained a warning label alerting a user to the danger posed by the rotating drum. The record contains no evidence of attendant circumstances that would have diverted McLaughlin's attention and created an issue of fact as to whether the danger was open and obvious. To the contrary, McLaughlin was aware that the drum was rotating for a period of time before he elected to reach inside the machine. And he knowingly permitted the washing machine door to be forced open with a screwdriver in order for him to do so.

{¶ 17} Because the danger posed by the rotating washing machine was open and obvious, Andy's owed no duty of care to McLaughlin to protect him from such danger, and the trial court did not err in granting summary judgment on the McLaughlins' claim for negligence.

2. Products Liability

{¶ 18} The McLaughlins allege two types of products liability claims against Dexter and Robertshaw: defective design and failure to warn.

{¶ 19} According to the McLaughlins' expert Richard Marzola, the washing machine was defective in design because: the door lock mechanism could easily be forced open; the drum failed to stop turning when the machine's door was opened; the emergency stop button failed to work, and the drum continued to rotate for several minutes, when the machine was in "F-10" error mode; and there was a communication error between the machine's control panel and variable frequency drive resulting in a stop command being issued but not received and the drum continuing to rotate.

{¶ 20} The McLaughlins asserted that Dexter failed to provide a warning about what an "F-10" error meant and failed to warn consumers that the emergency stop button would not work when the machine was in "F-10" error mode.

{¶ 21} To prevail on a products liability claim against a manufacturer, a plaintiff must establish that: (1) the product was defective in manufacture or construction, was defective in design or formulation, was defective due to an inadequate warning, or was defective because it did not conform to a manufacturer's representation; (2) the defective aspect of the product was a proximate cause of the harm to the plaintiff; and (3) the manufacturer designed, formulated, produced, constructed, created, assembled or rebuilt the actual product that caused the harm. R.C. 2307.73(A).

{¶ 22} Summary judgment is appropriately granted to a manufacturer on a products liability claim when "the plaintiff uses the product 'in a capacity which is clearly unforeseeable by the manufacturer and completely incompatible with the product's design.' " Aldridge v. Reckart Equip. Co. , 4th Dist. Gallia No. 04CA17, 2006-Ohio-4964, 2006 WL 2716696, ¶ 90, quoting Welch Sand & Gravel Inc. v. O and K Trojan, Inc. , 107 Ohio App.3d 218, 225, 668 N.E.2d 529 (1st Dist.1995). " 'Misuse' of a product suggests a use which was unanticipated or unexpected by the product manufacturer, or unforeseeable and unanticipated." Markus v. SICO, Inc. , 8th Dist. Cuyahoga No. 74060, 1999 WL 304520, *4 (May 13, 1999).

{¶ 23} Dexter and Robertshaw contend that McLaughlin misused the washing machine in an unforeseeable manner when he allowed Jones to force open the machine door with a screwdriver, thus bypassing the safety lock, and then inserted his own hand into the rotating drum. The McLaughlins counter that use of the washing machine in this manner was foreseeable.

{¶ 24} To support their claim of foreseeability, the McLaughlins offered the expert testimony of Lawrence Larsen. Larsen had worked in the laundromat business for approximately 40 years. Larsen testified during his deposition that it was common knowledge in the laundromat industry that patrons would try to pry a machine door open to retrieve their belongings from a malfunctioning machine.

{¶ 25} Larsen explained that he had worked with three engineers from Dexter in the late 1980s in connection with the design of a washing machine, and that his discussions with the Dexter employees included how the door lock mechanism was often damaged by persons trying to pry open the door when the machine failed. He testified that those Dexter employees were aware that people had tried to pry open the doors to Dexter machines. But he later clarified that the Dexter employees had no knowledge of any prior incidents in which a person had pried open a door and reached into a washing machine while the drum was rotating. To distinguish these two actions, Larsen testified that "opening a door while the machine is running is not as frequent as someone attempting to pry the door open and breaking the door handle. That's a fairly common thing. Prying it open with a screwdriver or pry bar while the machine is running is not as popular." When asked further about laundromat patrons attempting self-help to retrieve their belongings, Larsen additionally stated, "I don't recall a particular incident in which the drum was still moving," and "[n]ormally it's done at the end of the cycle and the door won't open."

{¶ 26} During depositions conducted by the McLaughlins, multiple Dexter employees were asked if they knew whether the doors to Dexter's washing machines had ever been forced open by laundromat patrons. Blake Carnahan, an electrical production engineer for Dexter, testified that after McLaughlin's accident, he inspected the washing machine that McLaughlin had used. During the inspection, he noticed scratch marks around the door on various machines at Andy's. But he testified that he had never before seen that type of damage, and that he had no prior knowledge that consumers used screwdrivers or other instruments to pry open locked washing machine doors at laundromats.

{¶ 27} Ron Stearns, a Dexter electrical engineer, acknowledged that laundromat patrons may resort to self-help if a machine malfunctions and there is no attendant on duty or emergency number to call. But Stearns testified that he had never been informed that customers had opened locked machines to retrieve their belongings.

{¶ 28} Steve Cardis, a former product engineer with Dexter who had been present during an inspection of the machine that injured McLaughlin, testified that he saw marks on several washing machines at Andy's purportedly caused by patrons attempting to open locked washing machine doors. Cardis testified that he was surprised by this evidence of tampering as he had never heard of it occurring before at a laundromat. Dexter service technician Bradley Millard likewise testified that he had never heard of a laundromat patron using a screwdriver to open a locked washing machine.

{¶ 29} The undisputed testimony from all Dexter employees was that they had no prior knowledge of consumers prying open a washing machine door when the drum was still rotating and then inserting their hand into the rotating drum.

{¶ 30} Testimony from the McLaughlin's own expert, Richard Marzola, corroborated that offered by the Dexter employees. Marzola testified that he had seen clear evidence of damage around the door handle on washing machines at Andy's, but that he had seen nothing in the testimony that he had reviewed to indicate that Dexter had knowledge that people had been tampering with its machines in such a manner.

{¶ 31} The acts of forcing open a locked washing machine door with a screwdriver while the machine's drum was visibly rotating and still contained water, and then reaching into the rotating machine drum, constituted misuse of the product. Such actions, which included the purposeful disabling of a safety device on the machine, were completely incompatible with the product's design. See Aldridge , 4th Dist. Gallia No. 04CA17, 2006-Ohio-4964, 2006 WL 2716696, at ¶ 90. And following our review of the record, we find that no Dexter employees had prior knowledge of this misuse and that this misuse was not foreseeable.

{¶ 32} In the absence of any genuine issue of material fact as to whether McLaughlin had misused the washing machine in an unforeseeable manner, we hold that the trial court did not err in granting summary to the defendants on the McLaughlins' products liability claims.

3. Spoliation

{¶ 33} The McLaughlins asserted a claim for spoliation against Andy's. They allege in a footnote that the trial court erred in granting summary judgment on the spoliation claim.

{¶ 34} Because the McLaughlin's failed to separately argue this issue in their brief, we disregard it. App.R. 12(A)(2) ; See Thomas v. Cohr, Inc. , 197 Ohio App.3d 145, 2011-Ohio-5916, 966 N.E.2d 915, ¶ 4 (1st Dist.).

4. Loss of Consortium

{¶ 35} The McLaughlins argue that the trial court erred in granting summary judgment on Lisa McLaughlin's claim for loss of consortium. The loss-of-consortium claim was derivative of the other claims asserted by the McLaughlins and cannot stand independently. See Colegrove v. Fred A. Nemann Co. , 1st Dist. Hamilton No. C-140171, 2015-Ohio-533, 2015 WL 627633, ¶ 30. Because we have determined that the trial court properly granted summary judgment on all other claims, we hold that summary judgment was appropriately granted on the loss-of-consortium claim.

Conclusion

{¶ 36} Having found no error in the trial court's grant of summary judgment to the defendants, we overrule the sole assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

Deters, J., concurs.

Miller, J., concurs separately.

{¶ 37} I concur wholeheartedly in affirming summary judgment in favor of Andy's on the premises liability claims because the danger of the rotating drum was open and obvious. I also concur in affirming summary judgment in favor of Dexter and Robertshaw on the product liability claim, but on a different basis.

{¶ 38} I would find, at a minimum, a question of fact regarding whether McLaughlin's misuse was foreseeable. The anecdotal testimony about Dexter employees not being personally aware of a similar prior injury is inconsequential. The question is whether the misuse was foreseeable, not unprecedented or even unreasonable. Calmes v. Goodyear Tire & Rubber Co. , 61 Ohio St.3d 470, 476, 575 N.E.2d 416 (1991) ; see Eastman v. Stanley Works , 180 Ohio App.3d 844, 2009-Ohio-634, 907 N.E.2d 768, ¶ 43 (10th Dist.). Here the washing machine carried a label warning against opening the door while the drum is turning. The label also warned against reaching into a rotating drum. Thus, it is impossible to conclude on summary judgment that Dexter did not foresee the very actions that it warned against. Foresight of the exact method of opening the door-using a screwdriver as a lever-is less important than foreseeing that someone would try to open the door. And most critically, regardless of how a door came to be open-be it by user action, part failure, or otherwise, Dexter unquestionably foresaw and warned against the possibility of a person reaching into a rotating machine, which was the method of injury. Accordingly, I would not affirm summary judgment on the theory of the misuse being unforeseen.

{¶ 39} However, these same facts would allow for the judgment to be affirmed on the basis of assumption of the risk. A person is said to have assumed the risk of his actions when he consents to or acquiesces in an appreciated or known risk. Anderson v. Ceccardi , 6 Ohio St.3d 110, 112, 451 N.E.2d 780 (1983). "The practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that the plaintiff must have known and appreciated it." Id. The elements of assumption of the risk are "the plaintiff knew of the condition, the condition was patently dangerous, and the plaintiff voluntarily exposed himself or herself to the condition." Carrel v. Allied Product Corp., 78 Ohio St.3d 284, 289, 677 N.E.2d 795 (1997). McLaughlin unquestionably knew that the drum was rotating and the door was open-satisfying the first element. On the premises liability claim, we recognize that the danger of the rotating drum was open and obvious, which is equivalent to patently dangerous. The second element was also met. As for the third element, McLaughlin testified that he watched the machine for a minute or two waiting for it to stop. He also attempted to retrieve the comforter by pulling on a portion of it that had fallen out the open door. Only after that first attempt failed did McLaughlin fatefully reach into the machine. Thus, McLaughlin voluntarily exposed himself to the condition, satisfying the third element. Based upon these facts, one must conclude that the risk was so obvious that McLaughlin assumed the risk. Accordingly, I concur in the affirmance.