[Cite as State v. McKinney , 2020-Ohio-3547.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1033 Appellee Trial Court No. CR0201801981

v. Nathaniel McKinney DECISION AND JUDGMENT Appellant Decided: June 30, 2020 * * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. Thomas P. Kurt, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} Defendant-appellant, Nathaniel McKinney, appeals the February 8 , 2019 judgment of the Lucas County Court of Common Pleas which, follo wing a jury trial convicting appellant of rape and kidnapping, sentenced him to a total of eight years of imprisonment and classified appellant as a Tier III sexual offe nder. For the reasons that follow, we affirm.2. {¶ 2} Appellant was indicted on May 30, 2018, for an incident occurri ng on April 27, 2017, in Lucas County, Ohio. Appellant entered not g uilty pleas to the charges. The matter then proceeded to a jury trial commencing on January 7, 2019. {¶ 3} At trial, the state’s main witness was the alleged victim, S.W. She testified that on April 26, 2017, she attended a cookout at the mobile ho me of her friend, Dillon, in Holland, Lucas County, Ohio. Also in attendance was her fri end, Summer, and her date, appellant, who was introduced to S.W. by the name Goldy; she later learned his

name was Nathaniel. {¶ 4} S.W. testified that at some point in the evening she needed to leave to get more soda and water for the gathering; appellant offered to dri ve her and she agreed. S.W. stated that as they passed a gas station she asked appella nt why he did not stop; he stated that they were going to the next store. After passing W almart, S.W. asked appellant what was going on. According to S.W., appellant bega n hitting and choking her, telling her to shut up, and calling her a whore. S.W. tes tified that appellant had a

gun. {¶ 5} S.W. stated that appellant drove her to a two-story house, they went upstairs to a bedroom and appellant threw her on the bed, continued hitt ing her, and was strangling her with his hands and a chain. Appellant removed h er clothing and began to vaginally rape her. S.W. stated that the assault lasted approx imately two hours. {¶ 6} Following the assault, S.W. stated that appellant would not let her have her underwear back. She put on a white t-shirt and her shorts. S. W. stated that appellant3. drove her back to the party and then left. S.W. told Dillon an d Summer what happened

and then she went home. {¶ 7} After she arrived home, S.W. testified that she took a shower a nd went to her cousin’s house; she and her cousin then went to the hospital. Her mother met them at the hospital. S.W. stated that the nurse asked her questions, perf ormed a gynecological exam, and took photographs. S.W. identified appellant in the c ourtroom and stated that

she did not consent to have sexual intercourse with him. {¶ 8} During cross-examination, S.W. was questioned about the time fr ame of the

events at issue. S.W. testified that she arrived at Dillon’s h ouse around 5:00-6:00 p.m., and that appellant and Summer arrived approximately one hour la ter. S.W. stated that she and appellant left about five hours after the group assembl ed. S.W. speculated that it was 8:00-9:00 p.m. She stated that they were gone approximatel y two to two and onehalf hours. {¶ 9} S.W. stated that multiple people saw her leave in appellant’s c ar to get drinks; only Dillon and Summer were there when they returned. S.W. was questioned as to why she did not go straight to the hospital after the rape. She stated that she was a “mess” and was crying and just wanted to go home and take a sho wer which she did.

S.W. testified that she called her mother and her cousin and th at she and her cousin went to the police station; they directed her to the hospital to com plete a rape kit. {¶ 10} S.W. was questioned about the statements she gave to police. S he stated that she first spoke with an officer about two hours after arri ving at the hospital. The4. following day she spoke with a detective at the police station. S.W. testified that she gave a third statement approximately one year later at the pros ecutor’s office. S.W. clarified that her statements were verbal, not written. S.W. f urther testified that she was presented with a photo array and that she identified appellant as the assailant. {¶ 11} The SANE nurse who examined S.W. testified. She stated that a sexual assault examination consists of taking a history of the inciden t, charting and photographing any physical injuries, and taking physical eviden ce from the victim, via swabs, to be sent for laboratory analysis. The nurse stated th at S.W. was tearful and upset. The nurse testified that S.W. had injuries to her neck, mouth, and forehead, consistent with strangulation, and her arm, thighs, and vaginal area. The photographs taken by the nurse were admitted into evidence. {¶ 12} Bureau of Criminal Investigation (BCI) forensic scientist, Emil y Miller, testified that she received the rape kit from the Toledo Police Department containing swab samples from S.W. and from appellant. Miller stated that she performed presumptive and confirmatory testing and no semen was identifie d. The samples were then sent on for DNA analysis. Miller stated that the fact tha t S.W. showered and changed clothing before the evidence was collected was relevant in that it aided in determining whether to conduct initial testing on certain sampl es or to just forward them for DNA analysis. {¶ 13} Hallie Dreyer, also a forensic scientist with the BCI, testifie d that she performed the DNA analysis on samples from the sexual assault k it; they were compared5. with two known samples, appellant and S.W. Dreyer testified th at she prepared two reports regarding her findings. The May 24, 2017 report did no t contain findings of foreign DNA on the external swabs take from S.W.; the report wa s also completed prior to the submission of appellant’s DNA and Dreyer indicated the n otation that “additional male specific testing may be performed upon submission of a ref erence standard from the male individual in this instance.” Thereafter, on April 2, 201 8, Dreyer’s second report was issued. The BCI had received appellant’s DNA and, per offi ce standard, they were then able to test any swabs taken from S.W.’s orifices against the male standard. As to the vaginal sample, Dreyer testified that neither appellant nor his paternal male relatives could be excluded as a source. The probability was listed as o ne in every 1,471 male individuals in the United States population. Dreyer explained that the Y-STR DNA finding is less precise than conventional DNA testing due to th e limited database. {¶ 14} Dreyer was cross-examined regarding the statistical probability of her findings. Dreyer state that the database used contained 6,822 male DNA profiles. Dreyer explained that there was a partial DNA match in one of the prof iles which, compared to the general population, equaled one in 1,471. Dreyer testified that based on the database she was working with, the profile was considered rare. {¶ 15} Toledo Police Officer Jeffrey Goetz testified that on April 27, 2017, at the University of Toledo Medical Center (UTMC), he took the initial report in the case. Officer Goetz stated that S.W.’s eyes were “puffy” like she had been crying, she was6. shaking and very nervous. Officer Goetz stated that he then re turned to the police station, wrote out a report, and sent it to the detective bureau. {¶ 16} During cross-examination, Officer Goetz clarified that he met w ith S.W. at UTMC on April 27, 2017, at 6:08 p.m., and talked with her for a pproximately 15

minutes. Officer Goetz stated that S.W. said that the incident took place between April 26 and April 27, in-between approximately 7:00 p.m. and 4 :00 a.m. S.W. stated that she believed the house where she was taken was in the Airp ort Highway and Eastgate Road area in Toledo. Goetz further stated that S.W. d id not mention that appellant had a gun. {¶ 17} Toledo Police Detective Rebecca Kincaid testified that she admi nistered a “blind” photo array meaning that she did not know anything abou t the case including the identity of the suspect. The array consisted of six numbered p hotographs; SW. circled number five. The array was admitted into evidence. {¶ 18} Toledo Police Special Victims Unit (SVU) Detective Diana Trevin o testified that she is assigned to cases involving sexual assaul ts of adults and children. Trevino stated that she was assigned the case on April 28, 2017 , and met with S.W. on May 1. Officer Trevino stated that she took notes of the inter view but that S.W. did not sign a written statement. Trevino stated that S.W. signed the photo array after identifying appellant as the suspect. Officer Trevino testified that she c ollected the buccal swab from appellant; he stated that he did not know the victim.7. {¶ 19} During cross-examination, Officer Trevino acknowledged that she did not recall whether S.W. told her that appellant had a gun. Based o n S.W.’s description, she and other officers attempted to locate the house where the even ts took place; they were not successful. Further, Officer Trevino testified that S.W. g ave her the names of the attendees at the cookout. Trevino stated that no one responded to requests for an interview. In particular, she attempted to contact Dillon, the party host. He did not respond to phone messages, mail, or a business card left on his door. {¶ 20} At the conclusion of the state’s evidence, appellant made a Cri m.R. 29 motion for acquittal. The motion was denied and the defense th en rested. Following deliberations, the jury found appellant guilty of rape and kidn apping. On February 8, 2019, appellant was sentenced to a consecutive eight-year sente nce. This appeal followed with appellant raising three assignments of error for our review: I. The judgment of the trial court is against the manifest wei ght of

the evidence. II. The trial court erred in imposing consecutive sentences wh ere appellant’s convictions for rape and kidnapping are allied offe nses of similar import. III. The trial court erred in imposing consecutive prison sent ences without making the findings required by Ohio Revised Code § 292 9.14(C)(4) at the time of imposing sentence.8. {¶ 21} Appellant’s first assignment of error argues that his convictio ns are against the weight of the evidence presented at trial. Appellant first notes the fact that S.W. failed to mention to either law enforcement or medical personne l that appellant had a gun during the incident. Next, appellant points to the fact that n one of the partygoers testified. Finally, appellant takes issue with the DNA evidenc e which he states is “misleading” because, according to his calculations, approximat ely 71 males in the

Toledo area could have been S.W.’s assailant. {¶ 22} When reviewing a manifest weight claim, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses a nd determines whether in resolving conflicts in the evidence, the jury clearl y lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered. The discretionary power t o grant a new trial should be exercised only in the exceptional case in w hich the evidence weighs heavily against the conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220. Although under a manifest weight standard we consider the credibility of witnesses, we extend special deference to the ju ry’s credibility determinations given that it is the jury that has the benefit o f seeing the9. witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor.

State v. Roberson , 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 39, citing State v.

Fell , 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. {¶ 23} Regarding appellant’s argument concerning alleged inconsistenci es in the testimony, it is well-established that “‘[a] conviction is not against the manifest weight of the evidence solely because the jury heard inconsistent testimo ny.’” State v. Wade , 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, quoting State v. Asberry , 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11. Although S.W.’s testimony does appear to conflict with the recollections of Officer Goetz and Detective Trevino regarding the presence of a gun, the witnesses were cross-examined as to the discrepancy and the jury had the ability to assess S.W.’s mannerisms and candor. F urther the inconsistency does not impact the identification of appellant as the perpetra tor of the charges at issue in

this case. {¶ 24} Appellant next points to the fact that there were no witnesses who attended the cookout to corroborate that S.W. either left with appellant or that she stated that she had been raped following her return. Testimony was presented a bout the efforts to locate witnesses. S.W.’s testimony regarding the events was largely u ncontroverted. Further, there were documented physical injuries and DNA evidence. Thus , the fact that no

witnesses came forward was not critical to the state’s case.10. {¶ 25} Appellant’s final complaint was that the DNA evidence presented was “misleading” and that the results were not statistically persua sive. During the trial, appellant’s counsel thoroughly cross-examined BCI witnesses reg arding the DNA testing techniques, analysis, and interpretation of results. {¶ 26} Based on the foregoing, we find that appellant’s convictions we re not against the weight of the evidence presented at trial. Appella nt’s first assignment of error

is not well-taken. {¶ 27} Appellant’s second assignment of error asserts that the court e rred in imposing consecutive sentences where appellant’s convictions fo r rape and kidnapping are allied offenses of similar import. We first note, as did t he state, that the issue of merger was not raised in the trial court. “An accused’s failur e to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the p roceeding and reversal is necessary to correct a manifest miscarriage of justice.” State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. {¶ 28} To determine whether kidnapping and another offense are subject to merger under R.C. 2941.25, the primary question is “‘whether th e restraint or movement of the victim is merely incidental to a separate underlying cri me or, * * * whether it has a significance independent of the other offense.’” State v. Dean , 2018-Ohio-1740, 112 N.E.3d 32, ¶ 66 (6th Dist.), quoting State v. Logan , 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979). Where the restraint of the victim is prolonged, t he confinement of the11. victim secretive, or the movement of the victim is substantial, there exists a separate

animus for each offense. Logan at syllabus. A separate animus also exists 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 cr ime.” Id. {¶ 29} Appellant argues that under the present facts, the kidnapping w as “inextricably intertwined” with the rape, that no harm arose fr om the alleged kidnapping, and that it is uncertain that any “alleged” kidnapping occurred any sooner than when appellant produced a gun and forced her into the house where th e rape took place. We disagree. {¶ 30} S.W. testified at trial that while riding in appellant’s car, w hich she initially got into willingly, and after passing the second store where th ey could have purchased drinks, appellant began hitting and choking her and telling her to shut up. He then displayed a gun. S.W. stated that she went along because she “ didn’t want to die.” When they arrived at the house, appellant told S.W. to go upstairs w here he continued to physically assault her and then proceeded to vaginally rape her

. {¶ 31} Based on the foregoing, we find that there was separate and ide ntifiable harm related solely to the kidnapping count. Accordingly, the court’s failure to merge the counts at sentencing was neither plain error nor error. Appell ant’s second assignment of

error is not well-taken. {¶ 32} Appellant’s third assignment of error argues that the court err ed by imposing a consecutive sentence. Where the appellant challenge s the trial court’s12. imposition of consecutive sentences, we are required to review the issue under R.C. 2953.08(G)(2)(a), and must affirm the trial court unless we cle arly and convincingly find “[t]hat the record does not support the sentencing court’s find ings under division * * * (C)(4) of section 2929.14.” State v. Taylor , 6th Dist. Wood No. WD-19-009, 2020-Ohio404, ¶ 14. {¶ 33} In support of his argument, appellant relies on a case where th is court concluded that the defendant’s consecutive sentence was not sup ported by the required statutory findings under R.C. 2929.14(C)(4). State v. Clyde , 6th Dist. Erie No. E-14-006,

2015-Ohio-1859. In Clyde , the appellant was convicted of multiple sexual offenses and ordered to serve some of the sentences consecutively. On appea l, we concluded that

because the court failed to find one of the circumstances under R.C. 2929.14(C)(4)(a)-(c) in imposing consecutive sentences, the consecutive sentences we re contrary to law. Id. at ¶ 51, citing State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. {¶ 34} Recently this court, examining the Supreme Court of Ohio’s hold ings in

Bonnell , and State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, outlined a trial court’s requirements in sentencing a defendant to a consecutive sentence.

State v. Gessel , 6th Dist. Williams No. WM-19-004, 2020-Ohio-403. In Gessel , we stated that in sentencing a defendant to a consecutive sentence a trial court is required to make three statutory findings. Id. at ¶ 8, citing Beasley at ¶ 252; Bonnell at ¶ 26. The court must find (1) that consecutive sentences are necessary to protect the public or to punish the offender; (2) that consecutive sentences are not dis proportionate to the13. seriousness of the offender’s conduct and to the danger that th e offender poses to the public; and (3) that R.C. 2929.14(C)(4)(a), (b), or (c) is appl icable. Id. , citing Beasley at ¶ 252. These sections provide: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or m ore of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’ s conduct. (c) The offender’s history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 35} The trial court must make the above-quoted findings at the sent encing hearing and in the sentencing entry. Gessel at ¶ 8, citing Beasley at ¶ 253. While “‘a word-for-word recitation of the language of the statute is not required,’ a reviewing court must be able to discern that the trial court engaged in the cor rect analysis and the record must contain evidence to support the trial court’s findings.” Id. , quoting Bonnell at ¶ 29.14. {¶ 36} In the present case, at the February 6, 2019 sentencing hearing the trial court reviewed appellant’s lengthy criminal history, including violent offenses, noting that he is “clearly a threat to the community.” The court then found: [C]onsecutive sentences are necessary to protect the public fro m future crime or to punish the defendant and is not disproportio nate to the seriousness of the defendant’s conduct or danger that the defen dant poses. The Court further finds defendant caused harm that is so great no single prison term for any of the offenses committed as part of any co urse of conduct adequately reflects the seriousness of the offender’s c onduct. Two, the defendant’s criminal history requires consecutive sentences

. {¶ 37} The February 8, 2019 sentencing judgment entry provides: Being necessary to fulfill the purposes of R.C. 2929.11 and 2929.14(C)(4), consecutive sentence [sic] are necessary to prot ect the public from future crime or to punish the offender and are not disproportionate to the seriousness of the offender’s conduct a nd to the danger the offender poses to the public. The court further fin ds the harm caused was great or unusual such that no single prison term is adequate, and the defendant’s criminal history demonstrates that consecutive sentences are necessary to protect the public, therefore the sentences ar e ordered to be served consecutively.15. {¶ 38} Reviewing the proceedings, we conclude that the trial court mad e the necessary findings under R.C. 2929.14(C)(4). Specifically, the court’s conclusion at the sentencing hearing that a consecutive sentence was warranted du e to appellant’s criminal history is supported by the court’s recitation of appellant’s e xtensive criminal history and accompanying statement that appellant poses a threat to the com munity. Accordingly, we find that appellant’s consecutive sentence was not contrary to law and his third assignment of error is not well-taken. {¶ 39} On consideration whereof, we find that appellant was not prejud iced or prevented from having a fair proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.