text:
    William BOWEN, Plaintiff-Appellee v. FARMERS INSURANCE COMPANY, et al., Defendants-Appellants
    No. 105643
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 26, 2018
    Donald S. Scherzer, Stephen W. Funk, Roetzel & Andress, L.P.A., One Cleveland Center, 10th Floor, 1375 East 9th Street, Cleveland, Ohio 44114, Joseph Karnen, Brian M. Robinson, One Liberty Place, Suite 4900, 1650 Market Street, Philadelphia, Pennsylvania 19103, ATTORNEYS FOR APPELLANT
    Patrick J. Perotti, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, Ohio 44077, Ronald A. Margolis, Bonezzi, Switzer, Polito & Hupp, Co., L.P.A., 1300 East 9th Street, Suite 1950, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE
    BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Farmers Insurance of Columbus, Inc. ("Farmers") challenges the trial court's order certifying a class of individuals that purchased uninsured motorist coverage from Farmers between October 1994 and September 1997. Farmers argues that class certification is inappropriate. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant matter is premised on the Ohio Supreme Court's decision in Martin v. Midwestern Group Ins. Co. , 70 Ohio St.3d 478, 639 N.E.2d 438 (1994) (hereinafter " Martin v. Midwestern Group "). In Martin v. Midwestern Group , on October 5, 1994, the Ohio Supreme Court invalidated the "other-owned vehicle" exclusion to uninsured/underinsured motorist ("UM/UIM") coverage in every automobile insurance policy in Ohio. The court held that "[a]n automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid." Id. at paragraph three of the syllabus. The Martin v. Midwestern Group decision removed the necessity for insureds to pay UM/UIM premiums on each of the vehicles in their policy. Rather, they would have UM/UIM coverage while in any of their owned vehicles if a UM/UIM premium was paid on one vehicle.

{¶ 3} Prior to and at the time of the Martin v. Midwestern Group decision, plaintiff-appellee William Bowen had an automobile insurance policy through Farmers. Bowen had multiple vehicles on the policy, and he paid UM premiums on each vehicle.

{¶ 4} On March 31, 2009, Bowen filed a complaint against Farmers alleging that Farmers continued to assess multiple premiums for UM coverage despite the Ohio Supreme Court's holding in Martin v. Midwestern Group . Bowen filed an amended complaint on June 26, 2009. He filed a second amended complaint on January 8, 2010. In the second amended complaint, Bowen asserted causes of actions for breach of contract and fraud relating to Farmers' practice of assessing multiple UM premiums for UM coverage, even after a UM premium was paid on a first vehicle.

{¶ 5} On February 26, 2010, Farmers filed a motion to dismiss Bowen's second amended complaint. On May 14, 2010, the trial court granted Farmers' motion to dismiss the second amended complaint on the breach of contract claim; the trial court denied Farmers' motion to dismiss on the fraud claim.

{¶ 6} On December 31, 2015, Farmers filed a motion for summary judgment, arguing that Bowen's fraud claim was barred by the applicable four-year statute of limitations. Bowen filed a brief in opposition on June 14, 2011. Farmers filed a reply brief on June 27, 2011. On January 24, 2013, the trial court denied Farmers' motion for summary judgment.

{¶ 7} On March 12, 2015, Farmers filed a motion to strike class allegations pursuant to Civ.R. 23(D)(4) for want of bringing the fraud claim within the statute of limitations. Bowen filed a brief in opposition on April 2, 2015. The trial court denied Farmers' motion to strike class allegations on June 17, 2015.

{¶ 8} On December 31, 2015, Bowen filed a motion for class certification. Bowen sought to certify a class as defined as follows: "all persons who purchased automobile insurance from Farmers and paid premiums identified as paying for UM coverage on more than one vehicle in the household at any time during the period October 1994 through September 1997."

{¶ 9} Farmers filed a brief in opposition on February 16, 2016. In opposing Bowen's motion for class certification, Farmers argued that Bowen could not satisfy the superiority and predominance requirements under Civ.R. 23(B)(3). Specifically, Farmers argued that the following individual issues would overwhelm common issues: (1) the application of the four-year statute of limitations, (2) proof of class members' desire or lack of desire to obtain guest coverage, and (3) proof of actual reliance. Furthermore, Farmers asserted that proposed class includes members that were not harmed and did not suffer any damages from Farmers' practice of allocating UM premiums on a per-vehicle basis. Bowen filed a reply brief in support of his motion for class certification on March 1, 2016.

{¶ 10} The trial court held a hearing on Bowen's motion for class certification on April 4, 2016. On March 8, 2017, the trial court granted Bowen's motion for class certification.

{¶ 11} On April 6, 2017, Farmers filed the instant appeal challenging the trial court's judgment. Farmers assigns three errors for review:

I. The trial court erred in certifying an overly broad class consisting entirely of class members whose claims are barred by the statute of limitations.
II. The trial court erred by finding that common questions predominated where an injury-in-fact to each class member cannot be proven by common evidence.
III. The trial court erred by finding that common questions predominated because, if tolling can apply to the class claims, the trial court failed to consider the highly individualized inquiries necessary to determine whether each class member's claim was timely.

II. Law and Analysis

A. Standard of Review

{¶ 12} A trial court has broad discretion in determining whether to certify a class action. Konarzewski v. Ganley, Inc. , 2017-Ohio-4297, 82 N.E.3d 1191, ¶ 8. This court will not disturb the trial court's determination absent an abuse of discretion. Id. , citing Marks v. C.P. Chem. Co., Inc. , 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. "The trial court's discretion is not unlimited, but is bound by and must be exercised within the framework of Civ.R. 23." Konarzewski at id. , citing Hamilton v. Ohio Savs. Bank , 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 13} "[A] party seeking certification pursuant to Civ.R. 23 bears the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in the rule." Cullen v. State Farm Mut. Auto. Ins. Co. , 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 15. The following seven requirements must be met in order for a class action to be maintained under Civ.R. 23 :

(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three Civ.R. 23(B) requirements must be met.

Hamilton at 71, 694 N.E.2d 442, citing Civ.R. 23(A) and (B), and Warner v. Waste Mgt. , 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988). In order to certify a class under Civ.R. 23(B)(3), the trial court must find (1) "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members" and (2) "that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Cullen at ¶ 29.

{¶ 14} If the party seeking certification fails to meet any one of the Civ.R. 23 requirements, class certification must be denied. Konarzewski at ¶ 9, citing Blue Ash Auto, Inc. v. Progressive Cas. Ins. Co. , 8th Dist. Cuyahoga Nos. 104251 and 104252, 2016-Ohio-7965, 2016 WL 7076639, ¶ 11.

B. Overbroad Class

{¶ 15} In the first assignment of error, Farmers argues that the trial court erred by misconstruing Ohio law regarding the application of the discovery rule and tolling the statute of limitations. As a result, Farmers asserts, the trial court certified an overbroad class, consisting entirely of class members whose claims are barred by the four-year statute of limitations applicable to Bowen's and the class members' fraud claim.

{¶ 16} Pursuant to the first Civ.R. 23(B) requirement, "the class must be identifiable and defined unambiguously." Clark v. Park 'N Fly , 8th Dist. Cuyahoga No. 94379, 2011-Ohio-323, 2011 WL 304653, ¶ 15.

"The requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2 Ed.1986) 120-121, Section 1760. Thus, the class definition must be precise enough "to permit identification within a reasonable effort." Warner [36 Ohio St.3d at 96, 521 N.E.2d 1091 ].

Hamilton , 82 Ohio St.3d at 71-72, 694 N.E.2d 442.

{¶ 17} This court has explained that the identifiable class requirement is not to be confused with the predominance requirement set forth in Civ.R. 23(B)(3). Clark at ¶ 18. The predominance requirement inquires whether "separate adjudications are likely required to finally determine the action." Hamilton at 73, 694 N.E.2d 442. "The focus at this stage is on how the class is defined. 'The test is whether the means is specified at the time of certification to determine whether a particular individual is a member of the class.' " Hamilton at id. , quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho , 52 Ohio St.3d 56, 63, 556 N.E.2d 157 (1990).

{¶ 18} In his motion for class certification, Bowen sought to certify a class as defined as follows: "all persons who purchased automobile insurance from Farmers and paid premiums identified as paying for UM coverage on more than one vehicle in the household at any time during the period October 1994 through September 1997." Put another way, Bowen's proposed class definition sought to certify a class of persons who Farmers had charged more than one UM premium for UM coverage.

{¶ 19} A proposed class is sufficiently definite if it is "appropriately defined by reference to defendant's conduct." Hamilton, 82 Ohio St.3d at 73, 694 N.E.2d 442. " '[A]ny class, the definition of which depends on the 'state of mind' of the prospective members, would be difficult to sustain, [and] the class, where possible, should be defined upon the basis of the manner in which the defendant acted toward an ascertainable group of persons.' " Id. , quoting Bernard v. First Natl. Bank of Oregon , 275 Ore. 145, 156-157, 550 P.2d 1203 (1976). This court has recognized that "if one need only look to the actions of the defendant to determine whether an individual is a member of the class, then it would be an abuse of discretion to deny class certification based on the absence of an identifiable class." Clark , 8th Dist. Cuyahoga No. 94379, 2011-Ohio-323, 2011 WL 304653, at ¶ 19, citing Hamilton at 74, 694 N.E.2d 442.

{¶ 20} After reviewing the record, we find that the definition of Bowen's class is unambiguous and sufficiently definite. In order to determine whether an individual is a member of the class, the trial court need only look to the actions or practices of Farmers, rather than the state of mind of any prospective class members. The definition permits identification of class members with reasonable effort.

{¶ 21} This information-whether an insured paid multiple UM premiums for UM coverage-could be easily obtained by reviewing Farmers' business records. As the trial court recognized in its judgment entry granting Bowen's motion for class certification, "[a] data expert at Farmers testified that he could create a list of insureds that falls within [Bowen's proposed class definition] from [Farmers'] records, so the class members are identifiable."

{¶ 22} Farmers' statute of limitations argument presents factual and legal issues-whether Bowen and the class members discovered or should have discovered the facts giving rise to the fraud claim by paying multiple UM premiums-rather than focusing on how the class is defined. See Hamilton, 82 Ohio St.3d at 73, 694 N.E.2d 442. These factual and legal issues do not come into the Civ.R. 23 analysis until the court considers the predominance and superiority requirements set forth in Civ.R. 23(B)(3). Marks , 31 Ohio St.3d at 202, 509 N.E.2d 1249 ; Hamilton at 73, 694 N.E.2d 442.

{¶ 23} Based on the foregoing analysis, we find that the trial court properly found that Bowen met the threshold requirement of establishing an identifiable and unambiguous class. Accordingly, Farmers' first assignment of error is overruled.

C. Civ.R. 23(B)(3) Predominance Requirement

1. Injury-in-Fact Proven By Common Evidence

{¶ 24} In the second assignment of error, Farmers argues that the trial court erred by finding that common questions predominated because an injury-in-fact to each class member cannot be proven by common evidence. Furthermore, Farmers contends that the trial court abused its discretion in accepting Bowen's theory of injury-in-fact and damages.

{¶ 25} Farmers directs this court to DeVall v. Erie Ins. Group , 9th Dist. Summit No. 17300, 1996 WL 27925 (Jan. 24, 1996). In DeVall , the plaintiffs-appellants filed a class action against Erie Insurance Group alleging that after the Martin v. Midwestern Group decision, Erie improperly charged UM/UIM premiums on a per vehicle basis without assuming any additional risk. Appellants argued that in order to comply with Martin v. Midwestern Group , Erie was required to charge UM premiums on a per person basis. Erie filed a motion for summary judgment and a supporting affidavit from an agent of the insurance company. The agent explained the method by which Erie determines the cost of UM coverage and explained the way in which the company passes those costs along to the insured. Furthermore, the agent asserted that the cost of providing UM coverage to appellants was $198, and explained that the figure would be the same regardless of whether it was assessed on a per-vehicle or per-person basis. Id. at 2. The trial court granted Erie's motion for summary judgment.

{¶ 26} On appeal, the Ninth District affirmed the trial court's ruling, concluding that "[a]ppellants have not produced any evidence that they overpaid for the insurance coverage they received: they have simply pointed to [ Martin v. Midwestern Group ] and argued that they could have obtained the same coverage had they only insured one of their vehicles." Id. ; see Fairhurst v. Owners Ins. Co. , 9th Dist. Summit No. 17402, 1996 WL 148623, 1 (Apr. 3, 1996) (appellate court rejected the plaintiffs-appellants' argument that insurance company received additional money without assuming additional risk by charging UM premiums on a per-vehicle basis because appellants failed to provide any evidence that they overpaid for the coverage they received.); Jefferys v. State Farm Mut. Auto. Ins. Co. , 5th Dist. Stark No. 1996CA00048, 1996 WL 752882, 2 (Oct. 28, 1996) (appellate court rejected plaintiffs' argument that pursuant to Martin v. Midwestern Group , it was unlawful for insurance company to charge multiple UM premiums).

{¶ 27} In the instant matter, Farmers argues that it did not increase the rates for UM coverage post- Martin v. Midwestern Group , it simply continued its policy of charging UM premiums on a per-vehicle rather than a per-person basis. Farmers emphasizes that damages cannot be presumed based solely on the fact that an insured paid multiple UM premiums for UM coverage. In order to determine whether an insured overpaid for UM coverage, Farmers asserts that the following must also be considered: (1) the total amount of premium(s) paid, (2) the coverage received, (3) the risk of being insured, (4) insurance rate-setting practices, (5) the number of vehicles in a particular household, and (6) the number of persons in a particular household.

{¶ 28} Farmers argues that when all of these factors are taken into consideration, it becomes evident that some prospective class members received adequate UM coverage, or even more UM coverage, by paying UM premiums on a per-vehicle rather than a per-person basis. In fact, Farmers contends that if it had re-rated UM premiums post- Martin v. Midwestern Group on a per-person rather than a per-vehicle basis, some prospective class members-including Bowen himself-would have paid more for UM coverage.

{¶ 29} Bowen, on the other hand, directs this court to Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 727 N.E.2d 1265 (2000). In Baughman , plaintiffs, who paid multiple premiums for UM coverage, filed a complaint against their insurance company, State Farm, alleging that (1) State Farm charged premiums for UM coverage that it had no intention of providing, (2) the additional UM premiums were of no value and/or conferred no additional benefit or UM coverage, and (3) State Farm charged the additional UM premiums without informing insureds of the Martin v. Midwestern Group decision or that payment of a UM premium on one vehicle provided UM coverage to all resident relatives in the household. Plaintiffs asserted causes of action for fraud, conversion, unjust enrichment, negligence, breach of implied covenant or duty of good faith and fair dealing, and the return of insurance premiums based on a failure to disclose. The trial court granted the plaintiffs' motion for class certification.

{¶ 30} On appeal, State Farm argued that the trial court abused its discretion by finding that plaintiffs satisfied the Civ.R. 23 typicality, predominance, and superiority requirements. The appellate court emphasized that plaintiffs continued to renew their insurance policies with State Farm after they had a clear understanding of Martin v. Midwestern Group and after they had instituted the civil action. The appellate court concluded that the trial court abused its discretion in determining that plaintiffs satisfied the typicality requirement because plaintiffs' claims and State Farm's potential defenses would not be representative of the prospective class members who paid multiple UM premiums without knowledge of Martin v. Midwestern Group and the change in law.

{¶ 31} The Ohio Supreme Court reversed the Ninth District's judgment, holding that the trial court did not abuse its discretion in determining that the typicality requirement was satisfied. The court explained,

[plaintiffs] allege that State Farm wrongfully charged them separate premiums for uninsured/underinsured motorist coverage on each of their vehicles without disclosing that only one vehicle in the household need have uninsured/underinsured motorist coverage in order to provide such protection to all resident relatives, regardless of which vehicle they may be occupying when injured. In addition, [plaintiffs] allege that the policies they purchased all contained other-owned-vehicle exclusions, as well as a provision stating that policy terms could only be changed by an endorsement signed by one of State Farm's executive officers. These allegations form the essential gravamen of [plaintiffs'] six claims for relief. These claims arise from the same alleged wrongful practice and course of conduct that forms the claims of the class, and they are based on the same legal theories as those of the other class members. In attempting to establish liability, it appears that appellants will introduce evidence showing State Farm's past practice of informing its insureds of changes in the law bearing on coverage or policy terms, particularly those wrought by judicial decision that affected other-owned-vehicle exclusions, its failure to inform of [ Martin v. Midwestern Group ] or the invalidity of the other-owned-vehicle exclusion, and the presence of the integration clause in their policies. This is the same kind of evidence that all class members would be required to present in support of their claims. Thus, the adjudication of [plaintiffs'] claims against State Farm would necessarily involve a determination of State Farm's liability to the class generally, thereby aligning [plaintiffs'] litigation interests with those of the class.

Id. at 488, 639 N.E.2d 438.

{¶ 32} Bowen also directs this court to Martin v. Grange Mut. Ins. Co. , 143 Ohio App.3d 332, 757 N.E.2d 1251 (11th Dist.2001) (hereinafter " Martin v. Grange Mut. I "), where the Eleventh District distinguished DeVall , Fairhurst , and Jefferys from Baughman :

After carefully reviewing the [ DeVall , Fairhurst , and Jefferys ] decisions, it is readily apparent that all three decisions are distinguishable from the instant matter. In those cases, the plaintiffs filed complaints in which they claimed that, based on [ Martin v. Midwestern Group ], it was illegal for insurers to charge multiple premiums for uninsured/underinsured coverage. They contended that by charging their premium on a per vehicle basis, the insurance companies were actually imposing an additional premium without assuming any additional risks.
In each case, the trial court granted the insurer summary judgment. On appeal, these decisions were affirmed, primarily on the basis that [ Martin v. Midwestern Group ] did not hold that every insurance policy that contained an "other owned vehicle" exclusion was illegal. Rather, [ Martin v. Midwestern Group ] merely held that those particular provisions were unenforceable. Thus, they reasoned that the fact that "other owned vehicle" exclusions were unenforceable did not necessarily mean that every insured who paid uninsured/underinsured coverage on more than one vehicle overpaid. * * *
Unlike Jefferys , Fairhurst , and DeVall , appellants are not strictly seeking the return of "overpaid" premiums. Rather, they are claiming that appellee actively misled them into paying for coverage that was no longer necessary. Therefore, the case at bar is certainly more analogous to Baughman as opposed to Jeffe [r ]ys , Fairhurst , or DeVall .

Martin v. Grange Mut. I at 341-342, 757 N.E.2d 1251.

{¶ 33} In the instant matter, Bowen is not merely claiming that he "overpaid" for UM coverage or that, pursuant to Martin v. Midwestern Group , it was illegal for Farmers to charge multiple premiums for UM coverage. Rather, like Baughman , Bowen claims that Farmers (1) actively misled him and class members into paying for UM coverage that was no longer necessary and/or (2) misled him and class members into paying for guest coverage. Accordingly, we find this case to be more analogous to Baughman and Martin v. Grange Mut. I than Jefferys , Fairhurst, or DeVall .

{¶ 34} In attempting to establish liability, it appears that Bowen will introduce evidence-particularly, his declaration sheets-showing that (1) Farmers misrepresented the nature of his UM coverage and/or the nature of the multiple UM premiums assessed, and (2) Farmers failed to inform insureds of the Martin v. Midwestern Group decision. This is the same evidence that all class members will be required to present to support their fraud claims. Accordingly, the adjudication of Bowen's fraud claim against Farmers will necessarily involve a determination of Farmers' liability to the class generally.

{¶ 35} Farmers maintains that all of the prospective class members were not damaged by Farmers' practice of charging UM premiums on a per-vehicle basis post- Martin v. Midwestern Group . In support of its brief in opposition to Bowen's motion for class certification, Farmers submitted an expert report from actuary Paul Anderson. Anderson opined, in relevant part, that if Farmers had re-rated UM premiums after Martin on a per-person rather than a per-vehicle basis, "Bowen's total UM premium would have increased, and among other households included in the class definition, some class members would have paid more UM premium and some would have paid less." Furthermore, Anderson explained,

[t]hose class members that would have paid more UM premium with an exposure unit of "persons" include those households where the number of vehicles was less than the number of persons. Those class members that would have paid less UM premium with an exposure unit of "persons" include those households where the number of vehicles was greater than or equal to the number of persons.

{¶ 36} The Eleventh District considered a similar argument in Martin v. Grange Mut. Ins. Co. , 11th Dist. Geauga No. 2004-G-2558, 2004-Ohio-6950, 2004 WL 2937308 (hereinafter " Martin v. Grange Mut. II "). There, the insurance company argued that the named plaintiffs' claims were not typical of the claims of the class members. In support of this argument, Grange Mutual set forth

a hypothetical evaluation demonstrating the practical effect of [ Martin v. Midwestern Group ] on the premiums of individual policyholders. Based upon this evaluation, Grange Mutual determined that premiums would vary and the [named plaintiffs], as class representatives, perhaps would have paid a higher or lower premium compared to the other class members.

Martin v. Grange Mut. II at ¶ 21. The appellate court rejected Grange Mutual's disparate damages argument, finding that both the named plaintiffs' claims and the class members' claims were "predicated upon common evidence relating to Grange Mutual's failure to disclose legal information, thereby allowing Grange Mutual to charge additional premiums for uninsured/underinsured motorist coverage." Martin v. Grange Mut. II at ¶ 25. Furthermore, the court explained,

Grange Mutual's argument, that a possible disparity exists between the Martins' damages and the class members' damages, is based upon various presumptions of fact. The record before us establishes that each class member's damages could be mathematically calculated by determining the multiple premiums paid by the individual class member from October 5, 1994, through September 2, 1997. Thus, the court could easily and quickly determine the exact amount due each class member without the presentation of additional evidence from every individual of the class. See, e.g., Hamilton . Here, the issue of disparate damages does not preclude class certification.

Martin v. Grange Mut. II at ¶ 28.

{¶ 37} In the instant matter, Bowen's and the class members' fraud claim is predicated upon common evidence relating to Farmers' misrepresentations about the nature of the multiple UM premiums and/or the nature and extent of UM coverage, thereby allowing Farmers to charge additional UM premiums. Farmers' damages argument is based on various presumptions of fact, such as the presumption that post- Martin v. Midwestern Group , UM premiums would have been determined by using persons rather than vehicles as the exposure unit.

{¶ 38} Finally, the record reflects that each class members' damages could be mathematically calculated by determining the multiple UM premiums paid by the individual class members from October 5, 1994, through September 2, 1997. Accordingly, the trial court could easily determine the exact amount due to each class member without requiring each individual class member to present additional evidence. See Martin v. Grange Mut. II at ¶ 28, citing Hamilton .

{¶ 39} Based on the foregoing analysis, Farmers' second assignment of error is overruled.

2. Statute of Limitations

{¶ 40} In the third assignment of error, Farmers argues that even if the discovery rule can apply to toll the statute of limitations, the trial court erred by finding that Bowen satisfied the predominance requirement because highly individualized inquiries are necessary to determine whether the class members' claims were timely. Specifically, Farmers argues that individualized inquiries will be required to determine whether class members knew or should have known about (1) the facts giving rise to their claims-payment of multiple UM premiums-or (2) the Martin v. Midwestern Group decision and its effect.

{¶ 41} Initially, we address Bowen's argument that Farmers is improperly challenging the merits of the fraud claim.

{¶ 42} "Class action certification does not go to the merits of the action." (Emphasis sic.) Ojalvo v. Bd. of Trustees of Ohio State Univ. , 12 Ohio St.3d 230, 233, 466 N.E.2d 875 (1984). However, in deciding whether a plaintiff meets the burden for class certification under Civ.R. 23, a trial court is required to consider "what will have to be proved at trial and whether those matters can be presented by common proof." Cullen , 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, at ¶ 17, citing 7AA Wright, Miller & Kane, Federal Practice and Procedure , Section 1785 (3d Ed.2005).

{¶ 43} The United States Supreme Court has recognized that a trial court's rigorous analysis of Civ.R. 23 will often "overlap with the merits of the plaintiff's underlying claim." Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). When a Civ.R. 23 requirement and a merit issue overlap, a trial court may examine the underlying merits of a plaintiff's claim, but only to the extent necessary to determine whether the Civ.R. 23 requirement is satisfied. Wal-Mart at id.

{¶ 44} The United States Supreme Court has made clear, however, that "the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the 'metho[d]' best suited to adjudication of the controversy 'fairly and efficiently.' " Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds , 568 U.S. 455, 460, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). Wal-Mart and Amgen have clarified that at the class-certification stage, trial courts may probe the underlying merits of an action, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Fed.R.Civ.P. 23. See also Comcast Corp. v. Behrend , 569 U.S. 27, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).

{¶ 45} In the instant matter, the statute of limitations issues Farmers raises in its third assignment of error pertain to the merits of Bowen's fraud claim. After reviewing the record, we find that the superiority and predominance requirements set forth in Civ.R. 23(B) overlap with the merits of Bowen's fraud claim and the statute of limitations issues raised by Farmers. Accordingly, we must consider the statute of limitations issues in addressing Farmers' third assignment of error and determining whether the trial court abused its discretion in determining that Bowen satisfied the predominance requirement pursuant to Civ.R. 23(B).

{¶ 46} In support of its argument that the fraud claim is time-barred, Farmers argues that the discovery rule does not apply because (1) knowledge of multiple UM premiums, rather than knowledge of the illegality of these premiums or the Martin v. Midwestern Group decision triggered the statute of limitations, and (2) Bowen and the prospective class members knew or should have known about the multiple UM premiums because they were reflected in the insureds' declaration sheets. Because the multiple premium charges were reflected in the declaration sheets, Farmers argues that Bowen and the prospective class members knew or should have known that they were paying multiple premiums, and thus, were put on notice to inquire further about the nature of the multiple premium charges. Furthermore, Farmers argues that Bowen's ignorance of the law-the Martin v. Midwestern Group decision-does not toll the four-year statute of limitations.

{¶ 47} Bowen, on the other hand, argues that the only billing documents that customers received were the declarations sheets. He emphasizes that the declaration sheets only listed the gross amount of premiums charged for each vehicle, rather than clearly listing or itemizing the UM premiums. In other words, Bowen argues that he and the class members were unable to determine that something was awry-that they were being charged UM premiums on second and third vehicles-by simply looking at the declaration sheets because the declaration sheets do not disclose or reveal that insureds were being charged additional UM premiums

{¶ 48} The trial court explained that Bowen filed his original complaint well after the four-year statute of limitations had expired. As such, the trial court recognized that "a determination must be made as to when [he] actually discovered or should have discovered the fraud." In finding that Bowen satisfied the superiority requirement, the trial court stated, in relevant part:

For Bowen, the evidence shows that he had actual knowledge [of the fraud] only a short while before the complaint was filed. So the issue for [Bowen] is whether he should have discovered the fraud more than four years before first filing on March 31, 2009. When determining whether, through the exercise of reasonable diligence, a party should have discovered a case of fraud, the relevant inquiry is whether the facts known would lead a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry. Marks [v. KeyBank N.A. , 8th Dist. Cuyahoga No. 84691, 2005-Ohio-769, 2005 WL 433528, ¶ 24 ].
* * *
That leaves, for any class member, the questions of when and whether they should have discovered they had been defrauded. For all of them-including Bowen-that is a question of fact that only has to be decided once, since the evidence that Farmers pointed at to demonstrate that Bowen, through reasonable diligence and in the absence of actual knowledge of the fraud, should have discovered the fraud long before 2005 will be the same evidence it uses to show that any class members should have discovered the fraud. In other words, the application of the statute of limitations to bar Bowen's claim will rest on whether with reasonable diligence he should have discovered the fraud before 2005, based on information actually known to him-namely, the payment of multiple UM premiums-and information he arguably should have known-the specific language of his policy and the [ Martin v. Midwestern Group ] decision and its effect. This exact inquiry will apply equally to all class members since knowledge of the payment of their premiums may be implied and the rest is simply a reasonable person test.
Thus, Bowen has satisfied the superiority requirement.

{¶ 49} After reviewing the record, we cannot say that the trial court abused its discretion in determining that Bowen satisfied the predominance requirement under Civ.R. 23(B).

{¶ 50} In Lynch v. Dial Fin. Co. of Ohio No. 1, Inc. , 101 Ohio App.3d 742, 656 N.E.2d 714 (8th Dist.1995), plaintiffs-appellants filed an action in April 1992 alleging that the defendants violated the Second Mortgage Loan Act by charging them for credit accident and health insurance to secure three loans made between 1976 and 1978. Defendants moved for summary judgment, arguing, in relevant part, that appellants' claims for statutory damages were barred by the applicable one-year statute of limitations. The trial court granted the defendants' motion for summary judgment, and appellants appealed to this court.

{¶ 51} On appeal, appellants argued that the one-year statute of limitations should be tolled because they did not discover that the statute was violated or that they were injured until their lawyer explained the law to them in December 1991. This court rejected appellants' argument and held that their claims were barred by the one-year statute of limitations:

In this case, plaintiffs knew or should have known about the charges for accident and health insurance because they were itemized on the face of the loan documents which they signed in the latter 1970s. What plaintiffs "discovered" seventeen years later is that their lawyer told them that these charges allegedly violated R.C. 1321.57. That "discovery" cannot be used to circumvent the statute of limitations or limitations would become meaningless.

(Emphasis added.) Lynch at 748, 656 N.E.2d 714.

{¶ 52} In Sullivan v. Westfield Ins. Co. , 11th Dist. Lake No. 2012-L-004, 2013-Ohio-146, 2013 WL 221436, plaintiffs-appellants had an automobile insurance policy with Westfield prior to and in October 1994 when the Martin v. Midwestern Group decision was released. Three cars were insured under the policy and appellants paid UM and/or UIM premiums on all three vehicles. The policy was up for renewal on December 10, 1994; appellants did not pay their premiums and Westfield cancelled their insurance policy on June 6, 1995. Fifteen years later, appellants filed a class action complaint against Westfield alleging that the insurance company "unnecessarily and fraudulently continued to charge them premiums for UM/UIM coverage on more than one vehicle, despite the holding in [ Martin v. Midwestern Group .]" Id. at ¶ 5. Appellants alleged that Westfield represented to them that the premium payments for vehicles after the first was for UM coverage when the payments were actually for guest coverage.

Westfield filed a motion for summary judgment, arguing that appellants' claims were barred by the applicable statutes of limitations. In opposing Westfield's summary judgment motion, appellants argued that they had only recently discovered that the additional premiums were not for UM/UIM coverage, and thus, the discovery rule tolled the four-year statute of limitations for the misrepresentation and fraud claim. Id. at ¶ 11. The trial court granted Westfield's motion for summary judgment, concluding that appellants' claims were time barred. "[T]he trial court found that [appellants] had constructive knowledge of the facts giving rise to their claim, and that constructive knowledge was sufficient to begin the running of the statute of limitations." Id. at ¶ 13.

{¶ 53} On appeal, the Eleventh District held that the trial court properly determined that the discovery rule did not apply to appellant's fraud claim because appellants "had knowledge of all the relevant facts back in 1994" and they "did not demonstrate why, in the exercise of due diligence from the release of the [ Martin v. Midwestern Group ] decision in 1994, they could not have discovered the alleged fraud." Id. at ¶ 33. The court explained,

The UM/UIM premiums applied to each of their three vehicles are obvious from their declaration sheet , thus they are presumed to know the contents of their policy and that they were being assessed these charges. See Michigan Auto Ins. Co. v. Van Buskirk , 115 Ohio St. 598, 606, 4 Ohio Law Abs. 336, 5 Ohio Law Abs. 63, 155 N.E. 186 (1927). Furthermore, Mr. Sullivan, in his affidavit, confirmed that he had in fact reviewed the declaration page and was aware they were being charged multiple UM/UIM premiums . While the Sullivans were not aware of the legal significance of these multiple premiums, nor the fact that it was legally unnecessary to pay a separate premium for each automobile to provide UM/UIM coverage to them and their resident family members, that lack of understanding of the legal significance does not act to toll the running of the statute. "Ignorance of the law does not toll the statute of limitations." Lynch v. Dial Finance Co. of Ohio, Inc. , 101 Ohio App.3d 742, 748, 656 N.E.2d 714 (8th Dist.1995).

(Emphasis added.) Sullivan at ¶ 34.

{¶ 54} After reviewing the record in the instant matter, it is evident that Lynch and Sullivan are distinguishable.

{¶ 55} In support of his motion for class certification, Bowen submitted the transcript of his January 18, 2011 deposition. Exhibits C and D of Bowen's deposition are declaration sheets from Bowen's policy for a 1994 Plymouth Voyager and a 1987 Chevrolet Cavalier. These declaration sheets indicate (1) that Bowen has UM coverage on both vehicles, (2) the policy limits of the UM coverage, (3) that Bowen also has coverage for bodily injury, "P.D.," "Medical/No-Fault," Comprehensive, and Collision on both vehicles, and (4) the total amount of premium charges for each vehicle. The declaration sheets do not, however, specify what portion of the total premium balance is a premium for UM coverage. Farmers acknowledges as much in its reply brief: "the declaration sheet does not indicate what portion of the total premium paid is for the UM coverage[.]" Appellants' reply brief at 5, fn. 3.

{¶ 56} Exhibits Nos. 7 (F0014), 8 (F0015), and 9 (F0013) of Feldman's deposition are Farmers' internal documents pertaining to Bowen's policy. These documents, unlike the declaration sheets, clearly reflect (1) that Bowen was charged separate UM premiums for his different vehicles, and (2) the precise amounts of these separate UM premiums.

{¶ 57} Accordingly, unlike Lynch and Sullivan , the record reflects that the separate UM premiums for each vehicle were not clearly listed or itemized in the insured's declaration sheets. Had the separate UM premiums been clearly listed or itemized, and had Bowen knowingly paid the multiple UM premiums, he would have been put on notice, or should have been put on notice, to further inquire about the nature of or the coverage received for the multiple UM premium payments. This was not the case. Rather, Bowen knowingly made multiple premium payments, but the documents did not specify that he was charged multiple UM premiums. Accordingly, we cannot say that Bowen, having knowingly made multiple premium payments, was put on notice, or should have been put on notice, to further inquire about the nature of or the coverage received for the multiple UM premiums that were not clearly identified or itemized in the declaration sheets.

{¶ 58} In the instant matter, the facts giving rise to Bowen's and the class members' fraud claim is the payment of additional UM premiums on top of the UM premium paid on a first vehicle. As noted above, the declaration sheets clearly indicate (1) that Bowen had UM coverage for his vehicles, (2) the policy limits of the UM coverage for each vehicle, and (3) the gross amount of premium charges for each vehicle. However, the declaration sheets do not indicate that Bowen was being charged a separate UM premium on each vehicle, nor do they indicate what portion, if any, of the total premium amount is a UM premium. Accordingly, we cannot say that Bowen actually knew, or should have known, about the facts giving rise to his fraud claim-the payment of multiple UM premiums-based on the information set forth in the declaration sheets.

{¶ 59} Bowen asserts that the declaration sheets are the only document that Farmers' insureds receive that sets forth billing information. Farmers does not argue that its insureds received different versions of the declaration sheets. Thus, Bowen and the class members all had the same information available to them-the information set forth in the declaration sheets-regarding UM coverage, the UM coverage's policy limits, and the total amounts of premium charges for each vehicle. Thus, individual inquiries will not be required in order to determine whether, based on the information set forth in the insured's declaration sheets, Bowen and class members knew or should have known that they were paying multiple UM premiums.

{¶ 60} Finally, Farmers argues that some class members may have known that they were paying multiple UM premiums or were aware of the Martin v. Midwestern Group decision and its import. However, the Ohio Supreme Court has held,

"[t]hat a statute of limitations may bar the claims of some, but not all, class members does not compel a finding that individual issues predominate over common ones. * * * Rather, as long as there is a sufficient common nucleus of common issues, differences in the application of a statute of limitations to individual class members will not preclude certification under Rule 23(b)(3)."

Hamilton , 82 Ohio St.3d at 84, 694 N.E.2d 442, quoting 5 Moore, Federal Practice, Section 23.46[3], at 23-210 to 23-211 (3d Ed.1997).

{¶ 61} Based on the foregoing analysis, we agree with the trial court's determination that a class action is superior to other available methods for fairly and efficiently adjudicating this case. The record reflects that the prospective class shares a common nucleus of operative facts and asserts the same theory of liability. The substantive elements of the class members' claims require the same proof for each class member, and the class is clearly bound together by a mutual interest in resolving common questions to an extent that is greater than individual interests that may divide the class. Accordingly, the common questions, which represent a significant aspect of this case, predominate over questions related to individual class members.

{¶ 62} For all of the foregoing reasons, we find no basis upon which to conclude that the trial court abused its discretion in finding that Bowen satisfied the predominance requirement under Civ.R. 23(B). Farmers' third assignment of error is overruled.

III. Conclusion

{¶ 63} After thoroughly reviewing the record, we find that the trial court conducted the requisite rigorous analysis in determining whether Bowen satisfied the prerequisites for class certification pursuant to Civ.R. 23. Furthermore, we cannot say that the trial court abused its discretion in certifying the class in this case.

{¶ 64} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and TIM McCORMACK, J., CONCUR

      R.C. 2505.09.

      Baughman v. State Farm Mut. Auto. Ins. Co. , 9th Dist. Summit No. 19087, 1999 WL 64587 (Feb. 9, 1999).


source: Caselaw Access Project

author: MARY J. BOYLE, P.J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Ialie N. ROBERTSON, Defendant-Appellant
    No. 105562
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 26, 2018
    Mark Stanton, Cuyahoga County Public Defender, BY: Cullen Sweeney, Jeffrey Gamso, Assistant Public Defenders, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Owen M. Patton, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant, Ialie Robertson, appeals his gross sexual imposition and kidnapping convictions. He raises three assignments of error for our review:

1. Mr. Robertson was denied his right to effective assistance of counsel when [1] his lawyer failed to renew an objection to admission of Facebook message to AE from her stepfather when, despite a promise from the prosecutor, her father did not testify; and [2] his lawyer did not renew his Crim.R. 29 motion or move to vacate the verdicts and for a new trial when a "victim impact" letter from AE read to the court at sentencing indicated that she recognized that having sex with Robertson was a quid pro quo for his driving her to and from work.
2. Mr. Robertson was wrongly convicted of both gross sexual imposition and kidnapping. Because they are allied offenses of similar import pursuant to R.C. 2925.41, he could have been found guilty of both but should have only been sentenced for one.
3. Mr. Robertson's convictions were not supported by the manifest weight of the evidence.

{¶ 2} Finding merit to Robertson's second assignment of error, we affirm in part, reverse in part, and remand for resentencing.

I. Procedural History and Factual Background

{¶ 3} Robertson was indicted in March 2016 on three counts: attempted rape in violation of R.C. 2923.02 and 2907.02(A)(2), a second-degree felony; gross sexual imposition in violation of R.C. 2907.05(A)(1), a fourth-degree felony; and kidnapping in violation of R.C. 2905.01(A)(4), a first-degree felony, with a furthermore clause that the victim was over the age of 18. Robertson pleaded not guilty to the indictment. The following evidence was presented to a jury.

{¶ 4} The victim, A.E., testified that in February 2016, she and her three children were living with her mother, V.E., in V.E.'s one-bedroom apartment on the first floor of a six-story apartment building. V.E. rented her apartment from Cuyahoga County Metropolitan Housing Authority ("CMHA"). A.E. knew that she was not allowed to live in her mother's apartment, but she did not have anywhere else to go.

{¶ 5} While living with her mother, A.E. got to know many of the residents, including Robertson, whom she knew as "Buggy." Robertson lived on the fifth floor of the building. A.E. also knew Ida, who was older and lived on the third floor of the building, Samantha, who was also older and lived on the third floor, and Marshall Underwood, who lived down the hall from her mother. Ida and Samantha would watch A.E.'s children when A.E. had to work.

{¶ 6} A.E. was working at a Walmart in South Euclid in February 2016. She did not have a car, so she would take the bus. She had to change buses several times to get to work, so it could take up to two hours for her to get to work. That winter, Robertson offered to drive A.E. to work and to pick her up when she was done. In exchange for driving her to and from work, A.E. paid Robertson $15 per day. A.E. said that although the bus only cost her a little over $5 to get to work, paying Robertson was worth it because it was winter and she hated waiting for the bus in the cold. Also, when Robertson drove her to work, it only took about 25 minutes to get there. She explained that she lost her previous job because of being late due to the bus commute.

{¶ 7} A.E. testified that Robertson was known for making sexual remarks and sexual jokes to everyone. In fact, A.E.'s mother complained to the apartment manager about Robertson's jokes sometime in 2015. A.E. said that when Robertson made sexual comments to her, she just "shrugged it off" because "that was him." A.E. said that she was not scared of Robertson. She never took him seriously and never thought that he would "act on it" because she had known him for so long.

{¶ 8} A.E. testified to several examples of Robertson's sexual comments. She said that when he drove her to work, he would "reach his hand over" and touch her hair and tell her that he loved it when she wore it down. He also made comments about her "fly" always being open and that her pants were too tight. A.E. said that she never responded to Robertson's comments and never initiated physical contact with him.

{¶ 9} On February 25, 2016, A.E. worked at Walmart until 8:00 p.m. She made arrangements for Samantha to watch her children. Robertson transported her to work and back as scheduled. As they were driving back to the apartment building, Robertson asked her if she could put drops in his eyes that night. Robertson needed the drops every night, but could not do it himself. A.E. and others in the apartment building helped him with the drops. Before that day, A.E. had only put drops in Robertson's eyes "probably five or six" times. The first couple of times, she put the drops in Robertson's eyes in the lobby of the apartment building. The last two to three times, she went to his apartment to do it. A.E. had never been to Robertson's apartment for any reason other than to put drops in his eyes, and she had only been there "about three times total."

{¶ 10} When the two of them got back to the apartment building, A.E. dropped her things off at her mom's apartment and then stopped by Samantha's to see her children. She was at Samantha's for about 20 minutes and then told Samantha that she would be right back to get "her kids" after she put drops in Robertson's eyes. Normally, A.E. put the drops in his eyes and left, and it would only take two or three minutes.

{¶ 11} A.E. went to the fifth floor to Robertson's apartment, which had a small living room and kitchen and one small bedroom. A.E. was shorter than Robertson, so he had to sit down for her to put the drops in his eyes. Because Robertson did not have any furniture in his living room or kitchen, A.E. put the drops in Robertson's eyes while he sat on his bed.

{¶ 12} When A.E. walked in Robertson's bedroom, he had a "joint" in an ashtray beside the bed. He asked her if she "wanted to hit" it. She told him "no." A.E. "grabbed" the drops from Robertson's dresser, which were beside the bed, and put them in Robertson's eyes. She briefly turned back toward the dresser to place the drops on it, and when she did, Robertson grabbed her by her knees and "flung" her on the bed. A.E. said that she ended up on her back on Robertson's bed, and he climbed on top of her. A.E. testified that Robertson held her down on the bed with his body, with one of his knees between her legs. A.E. stated that Robertson began to try to loosen her belt buckle. A.E. was still wearing her work clothes, which were "cotton work pants" and a navy shirt. Robertson told A.E. that her "pants weren't super tight," which she believed meant that he was saying to her that she came to his apartment "[t]o sleep with him."

{¶ 13} A.E. said that Robertson tried to get her buckle loose three times. When he could not get it loose, he tried to pull her pants down. As he did, his thumb was inside the waistband of her pants, and she could feel his thumb against her bare skin. Robertson pulled her pants halfway down her buttocks with his hand inside of her underwear as he did it.

{¶ 14} A.E. testified that the whole incident lasted "a few minutes." She said that she fought Robertson the entire time and kept telling him "no, that's not what I came up here for," and to get off of her. She said that she kept trying to "scoot on the bed so that [her] pants would come back up." She also tried to sit up, but he pulled her back down. She was scared, but did not scream because she "honestly thought he would stop." A.E. said that she was just in "shock," because she thought that Robertson was her friend. Robertson never pulled her pants down all the way.

{¶ 15} After a few minutes, A.E.'s cell phone rang. She said that her phone had fallen on the bed, but she could reach it. She saw that it was Samantha and told Robertson that she had to "get her kids." He let her go. As she was leaving, he walked her to the door and asked her if "he messed up." She left without answering his question.

{¶ 16} When she left Robertson's apartment, she went to Samantha's to get her children. She did not tell Samantha what happened. She said that Samantha was really good friends with Robertson, so she did not want to tell her. Also, A.E. explained that she did not want anyone to know because nothing like that had ever happened to her. She was also worried that if everyone found out, she would have to move out of her mother's apartment and she did not have anywhere to go.

{¶ 17} Soon after she got back to her mother's apartment, however, she wrote the following statement on Facebook at 10:20 p.m.: "I understand why they don't say anything even it's not your fault you still feel hopeless and to blame, I never gave the impression after 5 yrs I never gave that impression [four sad emojis] God help me."

{¶ 18} Five minutes later, A.E. sent a private message to her stepfather (whom she referred to as her "father") on Facebook. She told her father that "somebody just tried to force [himself] on me after I said no like fifty times, he tried to pull my pants down and kept throwing me down." She further told her father that the man "kept asking me was I gone [sic] call the police on him and did he mess up with me." She said that if Samantha had not called, she does not know what would have happened. She begged her father not to tell anyone, stating that she did not "want any trouble." She told her father that she "never tried to lead [the man] on" and "never said I wanted him in any way. He always flirted but I never took it serious please I just wanna forget it ever happened." When her father told her that she needed to "get out of there," she responded that she did not have anywhere to go. A.E. further told her father:

Im scared and he's gonna deny it hes gonna say I tried to come on to him but that never happened I just went to put some drops in his eyes like I always do but this time he grabbed me and threw me down he kept asking me did he mess up cause I kept saying no and he was trying to take it I'm not like that I never been like that I never told him I wanted him he was supposed to be my friend I just don't want any trouble[.]

[Sic.]

{¶ 19} Her father then asked, "I take it he lives there?" She replied "yes," and said that the man had been driving her to and from work. She then stated, "I kept saying no I don't know if he thought I was playing or what but I kept saying no kept trying to move his hands."

{¶ 20} In another Facebook post, A.E. expressed that she was not lying about what happened. She wrote, "what do I have to gain from this?" She testified that she had nothing to gain from lying, but everything to lose for telling the truth because she would lose "a place to stay."

{¶ 21} Right after A.E. told her father, she then "messaged" Marshall Underwood, who lived up the hall from her mother, on Facebook and told him that Robertson had tried to force himself on her. A.E. then walked to Ida's apartment and told her. When she told Ida, she said that she broke down and cried hysterically.

{¶ 22} After she told Ida, she went back to her mother's apartment. Her mother was awake, but in bed. A.E. was supposed to braid her mother's hair that night, but she asked her mother if she could do it in the morning. As she was leaving her mother's room, she "broke down" and told her what happened. Her mother called the police. Two days later, A.E. had to move out of her mother's apartment because of the incident. She moved into a hotel with her children. She never saw Robertson after the incident.

{¶ 23} On cross-examination, A.E. admitted that she had smoked marijuana with Robertson in the past, but never in his apartment. She agreed that after this incident, she was no longer friends with Samantha. When asked if she and Robertson had talked about having sex "numerous times," she replied that she never initiated any conversation with Robertson about sex but that Robertson "always" initiated it. She also denied ever talking about going to a hotel with Robertson to have sex. When asked if she and Robertson had talked about "having sex in his apartment that day," she replied that she did not recall. The following exchange between Robertson's defense counsel and A.E. then took place:

Q. You don't recall? * * *
A. Of us having sex, no, I do not.
Q. You did not?
A. No.
Q. Had you talked about it with him on the phone that day?
A. I don't recall. If we did, I probably told him to shut him up.
Q. What did you tell him?
A. I don't recall.
Q. What did you tell him?
A. Probably just that, yeah, maybe. I don't recall. I really don't remember.

{¶ 24} A.E. then stated she only went to Robertson's apartment to put drops in his eyes and that she did not "recall us having a conversation about us having sex."

{¶ 25} A.E.'s mother testified that she had lived in her apartment for about six years. She told the jury about the time in 2015 when she complained to management about Robertson making sexual comments to her. She did not think that he would do the same thing to A.E. because she thought that Robertson looked at A.E. "more like a daughter."

{¶ 26} Underwood, who lived up the hall from A.E.'s mother, also testified that A.E. sent him a private message through Facebook telling him what Robertson had just done to her. Underwood told A.E. that he was sorry that happened to her. Underwood said that he did not talk to police because he did not want to get involved.

{¶ 27} CMHA police officer, Manuel Leon, and his partner were the first to arrive at the scene. Officer Leon said that A.E. was "highly agitated." She was crying and "shaking a lot," and her voice was very weak. A.E. told the officers that she went to Robertson's apartment to put drops in his eyes and that Robertson pulled her onto his bed by her thighs, pinned her to the bed, and tried to remove her jeans. Because it was a sexual assault allegation, Cleveland police, who had concurrent jurisdiction, took over the case.

{¶ 28} Cleveland police officer, Barry Bentley, testified that he was the first Cleveland officer at the scene. He said the victim was "distraught," "tearing up," crying, and "shaky." Officer Bentley identified a recording from another officer's body camera that depicted what happened when he and other officers first went to Robertson's apartment. The body cam video was played in court. Robertson told police that he sat on the bed and playfully "grabbed" A.E. to sit on the bed with him. Officer Bentley explained that Robertson kept altering his story and that he could never get a straight answer out of Robertson. He arrested Robertson and took him to the police station.

{¶ 29} Detective Morris Bruce Vowell of the Cleveland Police Department testified that he received the case on February 26, 2016. He interviewed A.E., who told him the same story that she told the CMHA officer and that she wrote in her statement to police. He interviewed A.E.'s mother too, who reported that A.E. told her the same version of events as well. Detective Vowell also spoke to A.E.'s father, who gave him permission to get into his Facebook account and print copies of his private conversation with A.E.

{¶ 30} Detective Vowell interviewed Robertson on February 26, 2016. The interview was video-recorded, and played in court. In his recorded statement, Robertson told Detective Vowell that when he drove A.E. to work on the day of the incident, he asked her if they were going to have sex that night. He also asked her if she was on her period. A.E. said to him, "you think we're going to have sex tonight?" He replied, "I'm just asking."

{¶ 31} Robertson said that when A.E. came to his apartment on the night of February 25, she rubbed up against him when she walked in the door. He said to her, "you better cut that shit out." Robertson told Detective Vowell that after A.E. put the drops in his eyes, he pulled A.E. onto the bed by her legs, but that he did not climb on top of her or attempt to pull her pants down. Robertson said that he grabbed the left waistband of A.E.'s pants and said, "come on," but he stopped when she said no because "no means no." Robertson said that was the only time he touched A.E.

{¶ 32} Robertson told Detective Vowell that two weeks prior, he and A.E. were going to have sex. Robertson said that A.E. wanted to have sex. He explained that A.E. came to his room and they smoked marijuana and that they were going to have sex, but did not. When the detective asked him why, Robertson responded that he was high and could not do it.

{¶ 33} Robertson also told Detective Vowell that when A.E. was working in Solon, he drove her kids to school and then took her to work. She did not have the money to pay him, so he suggested that they go to a hotel to have sex. Robertson called it a "fair exchange" for everything he did for her.

{¶ 34} At the close of the state's case, Robertson moved for a Crim.R. 29 acquittal, which the trial court denied. Robertson then rested and renewed his Crim.R. 29 motion, which the trial court again denied.

{¶ 35} The jury found Robertson not guilty of attempted rape, but guilty of gross sexual imposition and kidnapping. At the beginning of the sentencing hearing, Robertson argued that the gross sexual imposition and kidnapping offenses should merge, but the trial court disagreed. The trial court sentenced Robertson to concurrent terms of five years in prison for kidnapping and 17 months for gross sexual imposition. The trial court further imposed a fine of $250 on each offense plus costs. The trial court also notified Robertson that he would be classified a Tier I sex offender and be subject to five years of postrelease control upon his release from prison.

II. Ineffective Assistance of Counsel

{¶ 36} In his first assignment of error, Robertson argues that his trial counsel was ineffective for two reasons: (1) when his trial counsel failed to renew an objection to the admission of Facebook messages to A.E. from her father, and (2) when his trial counsel did not move to vacate the verdict and for a new trial when A.E.'s "victim impact" letter was read to the court at sentencing.

{¶ 37} To succeed on an ineffective assistance claim, Robertson must show that his trial counsel rendered deficient performance and that counsel's deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Robertson must prove that his trial counsel's performance fell below an objective standard of reasonable representation. Id. at 688, 104 S.Ct. 2052 ; State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). In evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. 2052, quoting Michel v. Louisiana , 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

{¶ 38} To show prejudice, Robertson must establish that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland and Bradley . The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697, 104 S.Ct. 2052.

A. Failure to Renew Objection

{¶ 39} Robertson claims here that his trial counsel was deficient when he failed to renew his objection to the state's admission of the Facebook messages from A.E.'s father to A.E. When the state introduced the Facebook messages during A.E.'s testimony, Robertson's trial counsel objected to the father's responses to A.E.'s messsages to him. The state informed the court that A.E.'s father was scheduled to testify the following day, but he never did.

{¶ 40} In State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, the Ohio Supreme Court explained the following with respect to counsel's failure to object:

"[E]xperienced trial counsel learn that objections to each potentially objectionable event could actually act to their party's detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice."

Id. at ¶ 140, quoting Lundgren v. Mitchell , 440 F.3d 754 (6th Cir.2006).

{¶ 41} Even assuming for the sake of argument that Robertson's counsel should have renewed his objection when A.E.'s father did not testify, we find no prejudice to Robertson. Notably, it is A.E.'s Facebook messages to her father-telling what Robertson did to her-that implicate Robertson. Robertson does not object to those messages being admitted. He only contends that A.E.'s father's responses were hearsay and should have been redacted. But A.E.'s father's Facebook responses do not implicate Robertson in any way. Her father simply told her that he could not keep quiet about the incident, that she should no longer stay there, and that she should not ride in Robertson's car anymore. We cannot see how Robertson suffered any prejudice by the jury seeing A.E.'s father's responses.

B. Victim Impact Letter

{¶ 42} Robertson also argues that his counsel was ineffective when he did not move for a new trial when A.E.'s "victim impact" letter was read to the court at sentencing. At Robertson's sentencing hearing, A.E. did not appear. An advocate from the Rape Crisis Center read A.E.'s letter to the court. The victim stated:

I only have a few things to say. What happened that night has changed my life in so many ways. I lost a lot of friends and became more and more antisocial. You were a friend of mine, and I never thought things would go so wrong. I don't think you know the stress it caused me. What you did resulted in me losing a roof over my head, having to sleep in a bedbug-infested motel with my children. You knew everything I was going through. You wanted to help. Did that mean I had to sleep with you? Forgive me for ever making it seem as if that was acceptable. I hope and pray that you can forgive yourself for what you've done. Thank you.

{¶ 43} Robertson claims that his counsel should have moved for a new trial when the advocate read the following from A.E.'s letter: "You knew everything I was going through. You wanted to help. Did that mean I had to sleep with you? Forgive me for ever making it seem as if that was acceptable." Robertson claims that this statement "suggest[s] that there was a quid pro quo arrangement * * * for sex in exchange for rides." He asserts that this statement "adds significant force to the already substantial evidence indicating that [he] should not have been found guilty."

{¶ 44} First, we disagree with Robertson that A.E.'s statement suggests that any quid pro quo arrangement existed. If anything, the statement proves the opposite-that no such arrangement existed. Her statement indicates that she thought Robertson may have believed that she owed him sex in exchange for driving her, but not that she ever agreed to such an arrangement. Indeed, Robertson's video-recorded statement establishes that he believed that he was entitled to sex in exchange for driving her. In the statement, he referred to it as "a fair exchange" for what he did for A.E.

{¶ 45} Second, even if we assumed for the sake of argument that A.E.'s statement suggests there was a quid pro quo arrangement between the two-which we do not-that still would not justify Robertson's actions of forcing A.E. onto his bed against her will, holding her down with the weight of his body, trying to remove her belt, and putting his hand inside of her pants and underwear. Nothing justifies forcefully holding a victim down against her will and touching her sexually without her permission.

{¶ 46} Finally, even assuming for the sake of argument that Robertson's counsel should have moved for a new trial, we find that the outcome of his trial would have been the same even if A.E.'s letter had been not admitted. Indeed, A.E.'s version of the events-her testimony at trial, her comments on Facebook, and her statements to the other officers, her mother, and to her neighbor-was consistent. Robertson's version of events was not. As Officer Bentley testified, when police first questioned Robertson, he kept changing his story and could not give a "straight answer."

{¶ 47} Accordingly, we overrule Robertson's first assignment of error.

III. Allied Offenses of Similar Import

{¶ 48} In his second assignment of error, Robertson argues that the trial court erred when it did not merge his convictions for kidnapping and gross sexual imposition. We agree.

{¶ 49} The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ; State v. Martello , 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7. But the Double Jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter , 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the dispositive issue is "whether the General Assembly intended to permit multiple punishments for the offenses at issue." State v. Childs , 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).

{¶ 50} In Ohio, this constitutional protection is codified in R.C. 2941.25. " R.C. 2941.25 essentially codified the judicial merger doctrine." State v. Cabrales , 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23. "Merger is 'the penal philosophy that a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.' " Id. at ¶ 23, fn. 3, quoting Maumee v. Geiger , 45 Ohio St.2d 238, 344 N.E.2d 133 (1976).

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

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

R.C. 2941.25(B).

{¶ 52} Two or more offenses are of dissimilar import within the meaning of R.C. 2941.25(B)"when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of the syllabus.

{¶ 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." Id. at ¶ 26. In Ruff , the Supreme Court held that if a defendant's conduct supports multiple offenses, the defendant can be convicted of all of the offenses if any one of the following is true (1) the conduct constitutes offenses of dissimilar import or significance, (2) the conduct shows the offenses were committed separately, or (3) the conduct shows the offenses were committed with separate animus or motivation. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B).

{¶ 54} When determining whether two offenses are allied offenses of similar import, we apply a de novo standard of review. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

{¶ 55} R.C. 2905.01(A)(4) sets forth the elements of kidnapping as: "[n]o person, by force, threat, or deception, * * * by any means, 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 * * * with the victim against the victim's will."

{¶ 56} Gross sexual imposition under R.C. 2907.05(A)(1) provides that "[n]o person shall have sexual contact with another * * * when * * * [t]he offender purposely compels the other person, or one of the other persons, to submit by force or threat of force."

{¶ 57} There is no question that when looking at Robertson's conduct in this case, it supports the offenses of kidnapping and gross sexual imposition. Thus, we must use the three-part test set forth in Ruff to determine if the offenses are dissimilar in import, were committed separately, or were committed with a separate animus.

{¶ 58} The first two questions can be easily answered. In this case, there was only one victim, the offenses were not committed separately, and the resulting harm from each offense was the same. Robertson restricted A.E.'s movement to commit the act of gross sexual imposition. Robertson pulled A.E. onto the bed, climbed on top of her, and unsuccessfully tried to loosen her belt and pull her pants down. According to A.E., the entire incident lasted "a few minutes." Thus, the offenses are similar in import and were not committed separately.

{¶ 59} To answer the third question, were the offenses of rape and kidnapping committed with separate animus or motivation, we turn to a case that is nearly 40 years old: State v. Logan , 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979). In Logan , the Supreme Court held the following:

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 the syllabus.

{¶ 60} Here, the restraint of the victim was merely incidental to the gross sexual imposition. Although the confinement was "secretive"-in Robertson's bedroom-the restraint was not prolonged and the movement was not substantial. And as we previously stated, A.E. was not subjected to a substantial risk of harm separate and apart from the gross sexual imposition.

{¶ 61} The state maintains that A.E. was subjected to "separate and identifiable harm" because the victim suffered one harm when Robertson forced her down on the bed, causing her to be "shocked and scared," and a separate harm when Robertson "forced her pants down and put his hands underneath her underpants." We find the state's argument to be wholly unfounded, lacking any sound reasoning, and against the nearly 40-year-old precedent set forth in Logan .

{¶ 62} We further find the state's citation to State v. Asadi-Ousley , 2017-Ohio-7252, 102 N.E.3d 52, in support of its argument that A.E. suffered separate harm to be disingenuous. In Asadi-Ousley , the victim was walking on the street at night when the defendant grabbed her from behind, held a knife to her neck, told her not to scream or he would kill her, covered her mouth with his hand, forced her from the street to an alleyway at knife point, struck her in the back of the head causing her to lose unconsciousness, and raped her while she was unconscious. This court held that although the "restraint of [the victim] was not prolonged, nor was the movement substantial," there was a separate animus as to felonious assault, kidnapping, and rape due to the substantial increased harm the victim suffered from each offense. Id. at ¶ 52.

{¶ 63} With respect to whether felonious assault was an allied offense to kidnapping and rape, we explained at ¶ 44 :

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

{¶ 64} With respect to the rape and kidnapping offenses, we further reasoned:

In this case, T.M. was knocked unconscious during her movement into the alleyway. Although the asportation was limited, Asadi-Ousley's commission of the "dissimilar" felonious assault offense during his movement of T.M. rendered her defenseless and, in our view, subjected her to an increased risk of harm that was separate and apart from that involved in the underlying rape. Under these circumstances, the kidnapping offense ceased to be incidental to the underlying rape from which it might have originated. See State v. Jones , 10th Dist. Franklin No. 15AP-670, 2017-Ohio-1168 [87 N.E.3d 900] (holding that defendant's blows to victim's head which knocked her to the floor and rendered her unconscious constituted substantial increases in the risk of harm separate and apart from the force involved in raping a victim); State v. Terrell , 1st Dist. Hamilton No. C-080286, 2009-Ohio-3257 [2009 WL 1900427] (holding that victim was subjected to a substantial increase in risk of harm separate and apart from rape when victim was struck in the face and moved to a nearby grassy area where a rape occurred). Accordingly, we find there was "a separate animus as to each offense sufficient to support separate convictions" for kidnapping and rape.

Id. at ¶ 52.

{¶ 65} To say that the gross sexual imposition and kidnapping offenses in the present case are analogous to the kidnapping and rape in Asadi-Ousley is wholly without merit and bordering on absurd.

{¶ 66} Robertson's second assignment of error is sustained.

IV. Manifest Weight of the Evidence

{¶ 67} In his third assignment of error, Robertson argues that his convictions were against the manifest weight of the evidence.

{¶ 68} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id. , citing State v. Robinson , 162 Ohio St. 486, 487, 124 N.E.2d 148 (1955).

{¶ 69} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a "thirteenth juror." Id. In doing so, it must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine " 'whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id. at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 70} The crux of Robertson's argument is that the evidence established that A.E. was a willing participant. Robertson claims that the evidence shows that (1) his acts were not hostile, (2) he did not grab A.E. against her will, and (3) he did not hold her down.

{¶ 71} A.E. testified that Robertson pulled her down on his bed against her will, pinned her down with his body, tried to loosen her belt, and when he could not do so, attempted to pull her pants down-all while she was trying to get away from him and telling him "no." Robertson admitted to police that he grabbed A.E. and pulled her onto his bed. Robert even admitted that he grabbed the waistband of A.E.'s pants. But where A.E.'s and Robertson's version of events differ is that A.E. claims that it was against her will and Robertson maintains that A.E. wanted to have sex with him.

{¶ 72} Robertson maintains that he told police that he and A.E. had talked about sex many times, which he claims is evidence that the act was consensual. A.E., however, testified that it was Robertson who talked about sex all of the time and was the one who made inappropriate sexual comments to her. She stated that she never initiated sexual conversation with Robertson. Even if A.E. did go along with Robertson's "sex talk" and participate in the conversations, that would not give Robertson permission to commit sexual assault against her.

{¶ 73} Robertson attempts to discredit A.E.'s testimony by pointing to his statements to police that A.E. had once agreed to go to a hotel with him to have sex when she could not afford to pay him for driving her to work. A.E., however, denied that she had agreed to go to a hotel with Robertson.

{¶ 74} Robertson further argues that the evidence shows that A.E. talked about having sex with him on the day of the incident. He points to A.E.'s response during cross-examination when defense counsel asked her if she and Robertson had talked about sex on the phone on the day of the incident. A.E. replied that she did not recall. Upon further questioning, A.E. said, "[i]f we did, I probably told him to shut him up." When questioned even further as to what she told Robertson on the phone, A.E. stated, "[p]robably just that, yeah, maybe. I don't recall. I really don't remember." A.E. then testified that she only went to Robertson's apartment to put drops in his eyes and that she did not "recall us having a conversation about us having sex."

{¶ 75} Robertson contends that the fact that A.E. stated that she may have told Robertson "yeah, maybe," reflects poorly on A.E.'s credibility. Determinations regarding the credibility of witnesses and the weight of the testimony, however, are primarily for the trier of fact. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, 2012 WL 2355778, ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of fact may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). In this case, the jury believed A.E. that she did not consent to being touched sexually by Robertson.

{¶ 76} Finally, Robertson argues that A.E.'s credibility is suspect because she did not immediately tell Samantha what had "supposedly" just happened, nor did she immediately tell her mother what had happened and that when she did, she wanted her mother to "keep it a secret." But A.E. explained why she did not tell Samantha or immediately tell her mother, and why she did not want anyone to know initially. The jury chose to believe her testimony, as it is permitted to do.

{¶ 77} At the trial, the jury also heard evidence from several witnesses who testified that A.E. was distraught, shaking, and crying when telling others what happened in Robertson's apartment. A.E.'s mother testified to A.E.'s demeanor, as well as three police officers. A.E. further told her father and Underwood in private Facebook messages what Robertson had just done to her. Thus, the jury heard more than just A.E.'s testimony.

{¶ 78} It appears from A.E.'s testimony that she really wanted Robertson to drive her to work and that for him to do so, she had to put up with his sexual innuendos. It also appears that Robinson's actions in his bedroom that day shocked her. She said that she never thought that Robertson would actually attempt to physically act on his comments because she had known him for so long.

{¶ 79} Thus, after reviewing the entire record, we find that this is not the "exceptional case in which the evidence weighs heavily against the conviction." Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541.

{¶ 80} Robertson's third assignment of error is overruled.

{¶ 81} Judgment affirmed in part, reversed in part, and cause remanded for resentencing. On remand, the state must elect the allied offense on which to proceed for purposes of sentencing.

SEAN C. GALLAGHER, J., and

ANITA LASTER MAYS, J., CONCUR