[Cite as State v. Bridges, 2018-Ohio-1388.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105440

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

ANDRE L. BRIDGES

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-16-602730-A 

BEFORE: Laster Mays, Stewart, P.J., and Boyle, J. 

RELEASED AND JOURNALIZED: April 12, 2018
-iATTORNEY FOR APPELLANT 

Leigh S. Prugh 

Nee Law Firm, L.L.C. 

26032 Detroit Road, Suite 5 

Westlake, OH 44145 

ATTORNEYS FOR APPELLEE 

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Maxwell Martin 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant Andre L. Bridges (“Bridges”) appeals his convictions 

and sentence, and asks this court to reverse his convictions and vacate his sentence. We 

affirm in part, reverse in part, and remand for resentencing. 

{¶2} Bridges was convicted of one count of rape, a first-degree felony, in violation 

of R.C. 2907.02(A)(2); one count of gross sexual imposition, a fourth- degree felony, in 

violation of R.C. 2907.05(A)(1); and one count of kidnapping, a first-degree felony, in 

violation of R.C. 2905.01(A)(4). The kidnapping count included a sexual motivation 

specification under R.C. 2941.147(A). Bridges was sentenced to nine years in prison 

and five years of mandatory postrelease control for rape. He was also sentenced to nine 

years in prison for kidnapping and 18 months for gross sexual imposition. The trial 

court ran the prison terms for kidnapping and gross sexual imposition concurrently, but 

consecutively to the sentence for rape. Bridges was sentenced to an aggregate of 18 

years in prison. 

I. Facts 

{¶3} Bridges first met the victim, L.M., at her sister’s house on Halloween, 2015. 

The two talked over the next few days and eventually planned to go to dinner for L.M.’s 

birthday. The date did not go well according to L.M. Over the next couple of days, 

Bridges attempted to call L.M. to apologize for the bad date. On November 8, 2015, 

Bridges ultimately contacted L.M. to discuss their last date and, after several hours of 
talking, L.M. accepted Bridges’s apology. L.M. informed Bridges that she had plans to 

celebrate her best friend’s birthday, and they separated. After dinner, L.M. and her 

friends decided to go to a club for dancing. This was also the same club that Bridges 

mentioned to L.M. that he would be going to that evening. 

{¶4} Bridges met with L.M. and her friends at the club. After a few drinks, L.M. 

asked Bridges to drive her home, and arranged for her friends to drive her car to her 

home. When they all arrived at L.M.’s house, L.M. told her friends that she wanted 

Bridges to leave because she did not want to have sex with him. Bridges and the rest of 

L.M’s friends left, with Bridges stating that he was going to come back to L.M.’s home. 

Ten minutes later, Bridges returned to L.M.’s home. L.M. refused to let Bridges into her 

home until he promised that they would not get physical. Once Bridges entered the 

home, Bridges and L.M. started kissing. L.M. pulled away and reminded Bridges of his 

promise. 

{¶5} L.M. and Bridges then walked into her living room, where they laid on the 

floor together and began kissing once more. L.M. again asked Bridges to slow down. 

Bridges got on top of L.M. and started touching and kissing her. L.M. resisted by trying 

to push Bridges off of her. Bridges removed L.M.’s clothes and penetrated L.M.’s 

vagina without her consent. 

{¶6} Once Bridges stopped, L.M. put her clothes back on and moved to the other 

side of the room. Bridges eventually left L.M.’s home. The next day, L.M. confided in 

her friend everything that transpired the night before with Bridges. That evening, L.M. 
reported the incident to the Maple Heights Police Department. L.M. then went to the 

hospital, where she was examined and treated for sexual assault. The semen discovered 

on L.M.’s body was submitted as part of L.M.’s rape kit. 

{¶7} A DNA analyst analyzed the semen from the rape kit and matched it to the 

DNA profile from Bridges. The police interviewed Bridges, who denied having sex 

with or raping L.M. On November 9, 2015, Bridges was indicted on rape, gross sexual 

imposition, and kidnapping. He was found guilty. 

{¶8} On October 26, 2016, Bridges filed a civil action, where he alleged 

malpractice against his own attorney on grounds that he was not permitted to testify on 

his own behalf at the trial. He also requested a new trial in the criminal case. The trial 

court denied Bridges’s motion for a new trial. Bridges filed a timely appeal assigning 

three errors for our review: 

I. The trial court erred in finding the appellant guilty on all of the 

counts of the indictment, as the conviction is against the manifest 

weight of the evidence; 

II. The trial court erred in failing to merge the counts of rape and 

kidnapping, as they should have been considered allied offenses 

under R.C. 2941.45; 

III. The trial court erred when it denied appellant’s motion for a new trial 

where Bridges was denied effective assistance of counsel based on 

his counsel’s refusal to allow him to testify at trial. 
II. Manifest Weight of the Evidence 

A. Standard of Review 

{¶9} Bridges claims that his conviction is against the manifest weight of the 

evidence. 

A manifest weight challenge attacks the credibility of the evidence 

presented and questions whether the state met its burden of persuasion at 

trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 

26, citing Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541;

State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. 

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. 

State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 48. 

{¶10} Also, 

“‘[w]hen considering an appellant’s claim that a conviction is against the 

manifest weight of the evidence, the court of appeals sits as a “thirteenth 

juror” and may disagree with the factfinder’s resolution of conflicting 

testimony.’” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 

102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must 

examine the entire record, weigh the evidence and all reasonable inferences, 
consider the witnesses’ credibility, and determine whether, in resolving 

conflicts in the evidence, the trier of fact clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered. Thompkins at 387, citing State v. Martin, 20 Ohio 

App.3d 172, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983). In conducting 

such a review, this court remains mindful that the credibility of witnesses 

and the weight of the evidence are matters primarily for the trier of fact to 

assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), 

paragraphs one and two of the syllabus. Reversal on manifest weight 

grounds is reserved for the “‘exceptional case in which the evidence weighs 

heavily against the conviction.’” Thompkins at 387, quoting Martin, 

supra. 

Id. at ¶ 49. 

B. Law and Analysis 

{¶11} In Bridges’s first assignment of error, he contends that his convictions were 

against the manifest weight of the evidence because L.M.’s testimony was inconsistent, 

resulting in L.M. not being a reliable witness. 

{¶12} Although, we review credibility when considering the manifest weight of 

the evidence, we are cognizant that determinations regarding the credibility of witnesses 

and the weight of the testimony are primarily for the trier of fact. 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 quoting 

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

{¶13} The rape statute, R.C. 2907.02(A)(2), states “no person shall engage in 

sexual conduct with another who is not the spouse of the offender * * *, the offender 

purposely compels the other person to submit by force or threat of force.” Bridges 

specifically points to L.M.’s testimony that after expressing displeasure with Bridges on 

the night of the rape, she let him back in the house. Bridges also refers to L.M.’s 

testimony where she stated, “[w]hile part of me enjoyed it, the other part felt I was losing 

control of the situation quickly. I repeatedly said ‘stop’ and that I didn’t want to do this.” 

(Tr. 617.) Bridges claims that by L.M. stating part of her enjoyed it, her testimony is 

unreliable. Bridges asserts that this demonstrates his encounter with L.M. was 

consensual. 

{¶14} However, 

[i]t is the province of the [factfinder] to determine where the truth probably 

lies from conflicting statements, not only of different witnesses, but by the 

same witness. State v. Haynes, 10th Dist. Franklin No. 03AP-1134, 

2005-Ohio-256, ¶ 24, quoting State v. Lakes, 120 Ohio App. 213, 201 

N.E.2d 809 (4th Dist.1964). “A conviction is not against the manifest 

weight of the evidence solely because the [factfinder] heard inconsistent 

testimony.” State v. Phillips, 8th Dist. Cuyahoga No. 103325, 

2017-Ohio-1284, ¶ 33, quoting State v. Hill, 8th Dist. Cuyahoga No. 99819, 

2014-Ohio-387. 

State v. Patterson, 8th Dist. Cuyahoga No. 105265, 2017-Ohio-8318, ¶ 19. 

{¶15} During trial, the factfinder had the opportunity to listen and observe 
L.M.’s demeanor, gestures, and voice inflection. It is the province of the factfinder to 

determine where the truth probably lies, even if the testimony was inconsistent. 

Reviewing the conflicts in the evidence, we do not find that the trier of fact clearly lost its 

way. We do not find that the rape conviction was against the manifest weight of the 

evidence. 

{¶16} Bridges also contends that his conviction in violation of R.C. 2905.01(A)(4) 

with a sexual motivation specification was also against the manifest weight of the 

evidence. The kidnapping statute, R.C. 2905.01(A), states that “[n]o person, by force, 

threat, or deception, * * *, shall remove another from the place where the other person is 

found or restrain the liberty of the other person, * * * (4) [t]o engage in sexual activity, as 

defined in section 2901.01 of the Revised Code, with the victim against the victim’s 

will.” 

{¶17} We find that Bridges’s assertion has no merit. The record reveals that the 

victim made multiple attempts to push Bridges off of her while she was restrained on the 

floor. The evidence supports that L.M.’s liberty was restrained in order for Bridges to 

engage in sexual activity. 

{¶18} We do not find that this is the exceptional case. Therefore, Bridge’s 

convictions for rape and kidnapping are not against the manifest weight of the evidence. 

{¶19} Bridges first assignment of error is overruled. 

III. Allied Offenses 

A. Standard of Review 
{¶20} Bridges argues that his convictions for rape and kidnapping are allied 

offenses and should merge for the purpose sentencing. “An appellate court applies a de 

novo standard of review when reviewing whether two offenses are allied offenses of 

similar import.” (Citation omitted.) State v. Boczek, 8th Dist. Cuyahoga No. 103811, 

2016-Ohio-5708, ¶ 4. 

B. Law and Analysis 

{¶21} In Bridges’s second assignment of error, he contends that the court erred in 

failing to merge the rape and kidnapping counts. R.C. 2941.25 provides: 

(A) Where the same conduct by defendant can be construed to constitute 

two or more allied offenses of similar import, the indictment or information 

may contain counts for all such offenses, but the defendant may be 

convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses of 

the same or similar kind committed separately or with a separate animus as 

to each, the indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 

{¶22} Courts must ask three questions when determining whether offenses are 

allied offenses of similar import within the meaning of R.C. 2941.25, 

* * * (1) Were the offenses dissimilar in import or significance — in other 

words, did each offense cause separate, identifiable harm? (2) Were they 

committed separately? and (3) Were they committed with separate animus 

or motivation? State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 

892, ¶ 31. “An affirmative answer to any of the above will permit separate 

convictions. The conduct, the animus, and the import must all be 

considered.” Id. 

Boczek at ¶ 6. 
{¶23} Bridges was convicted of kidnapping, in violation of R.C.2905.01(A)(4) and 

rape, in violation of R.C. 2907.02(A)(2). The kidnapping occurred when Bridges held 

L.M. down to rape her. See State v. Trotter, 8th Dist. Cuyahoga No. 97064, 

2012-Ohio-2760, ¶ 48 (“the state concedes that one of the kidnapping convictions merges 

into the rape convictions because it occurred when defendant held the victim down while 

he was raping her”). 

In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), the Supreme 

Court of Ohio adopted guidelines for determining whether kidnapping and 

another similar offense are allied offenses of similar import that were not 

committed with a separate animus. In the syllabus of Logan, the Supreme 

Court of Ohio stated: 

“(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 transportation 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.” 

State v. Smith, 10th Dist. Franklin No. 87AP-300, 1988 Ohio App. LEXIS 1858 (May 12, 

1988). 

{¶24} A review of the record reveals that the rape and kidnapping were not 

committed separately, but simultaneously, and were committed with the same motivation, 

to force the victim to engage in sexual conduct. Therefore, the trial court erred in not 

merging the rape and kidnapping counts. 
{¶25} Bridges’s second assignment of error is sustained. The trial court’s 

decision is reversed. We remand to the trial court to merge the rape and kidnapping 

convictions. The state shall elect the merger, and the trial court is to resentence Bridges. 

IV. Motion for New Trial 

A. Standard of Review 

{¶26} Bridges argues that the trial court erred when it denied his motion for a new 

trial. 

The decision to grant or deny a motion for new trial rests in the sound 

discretion of the trial court and will not be reversed on appeal absent an 

abuse of discretion. Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307, 312, 

1995 Ohio 224, 649 N.E.2d 1219. * * * An abuse of discretion is more than 

an error in judgment or a mistake of law; it connotes that the court’s attitude 

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore 

(1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140. 

Shepard v. Grand Trunk W. RR., 8th Dist. Cuyahoga No. 92711, 2010-Ohio-1853, ¶ 49. 

B. Law and Analysis 

{¶27} In Bridges’s third assignment of error, he contends that he was denied 

effective assistance of counsel because his trial counsel refused to allow him to testify at 

his trial. He filed a motion for a new trial, and the trial court denied it. 

In order to substantiate a claim of ineffective assistance of counsel, the 

appellant must show that: (1) counsel’s performance was deficient; and (2) 

the deficient performance prejudiced the defendant so as to deprive him of a 

fair trial. State v. Trimble, 122 Ohio St.3d 297, 911 N.E.2d 242 (2009), 

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel’s performance 

must be highly deferential. Strickland at 689. In Ohio, there is a 

presumption that a properly licensed attorney is competent. State v. 

Calhoun, 86 Ohio St.3d 279, 1999 Ohio 102, 714 N.E.2d 905 (1999). 

State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 34. 
{¶28} Bridges argues that his trial counsel informed him that Bridges could not 

testify and tell his side of the story. “Generally, the defendant’s right to testify is 

regarded both as a fundamental and a personal right that is waivable only by an accused.” 

State v. Bey, 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999). 

{¶29} However, 

“[w]hether or not a defendant testifies is purely a tactical decision.” State v. 

Hailes, 6th Dist. Wood No. WD-11-001, 2012-Ohio-3111, ¶ 53, quoting

State v. Ryan, 6th Dist. Wood No. WD-05-5120, 2006-Ohio-5120, ¶ 23. 

See also State v. Coulson, 3d Dist. Hardin No. 6-96-04, 1996 Ohio App. 

LEXIS 3621, 1996 WL 471304, *2 (Aug. 2, 1996). (“[W]e believe that 

counsel’s decision to allow defendant to testify was a reasonable tactical 

decision which will not be second guessed on appellate review.”). “Since 

the advice of an attorney to their client regarding the decision to testify is a 

tactical decision, it cannot be challenged on appeal on the grounds of 

ineffective assistance of counsel, unless it is shown that the decision was 

the result of coercion.” Hailes at ¶ 53, quoting Ryan at ¶ 23. 

State v. Johnston, 3d Dist. Logan No. 8-13-10, 2014-Ohio-353, ¶ 20. 

{¶30} There is nothing in the record which indicates that Bridges’s trial counsel 

coerced him to not testify at trial. 

The defendant bears the burden of proving ineffectiveness of counsel. 

State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596. “The 

defendant cannot meet his burden by making bare allegations that find no 

support in the record.” State v. Leek, 8th Dist. Cuyahoga No. 74338, 1999 

Ohio App. LEXIS 3503 (July 29, 1999), unreported, citing State v. Stewart, 

8th Dist. Cuyahoga No. 73255 (Nov. 19, 1998), unreported, citing State v. 

Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). 

State v. Cobb, 8th Dist. Cuyahoga No. 76950, 2001-Ohio-4132, 2001 Ohio App. LEXIS 

968, 9 (Mar. 8, 2001). In this case, Bridges fails to satisfy either prong of the Strickland

test. Bridges was not denied effective assistance of counsel. 

{¶31} Crim.R. 33(A) provides the grounds for when a new trial may be granted. 
It states, 

A new trial may be granted on motion of the defendant for any of the 

following causes affecting materially his substantial rights: 

(1) Irregularity in the proceedings, or in any order or ruling of the court, 

or abuse of discretion by the court, because of which the defendant was 

prevented from having a fair trial; 

(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the 

state; 

(3) Accident or surprise which ordinary prudence could not have guarded 

against; 

(4) That the verdict is not sustained by sufficient evidence or is contrary 

to law. If the evidence shows the defendant is not guilty of the degree of 

crime for which he was convicted, but guilty of a lesser degree thereof, or 

of a lesser crime included therein, the court may modify the verdict or 

finding accordingly, without granting or ordering a new trial, and shall pass 

sentence on such verdict or finding as modified; 

(5) Error of law occurring at the trial; 

(6) When new evidence material to the defense is discovered, which the 

defendant could not with reasonable diligence have discovered and 

produced at the trial. When a motion for a new trial is made upon the 

ground of newly discovered evidence, the defendant must produce at the 

hearing on the motion, in support thereof, the affidavits of the witnesses by 

whom such evidence is expected to be given, and if time is required by the 

defendant to procure such affidavits, the court may postpone the hearing of 

the motion for such length of time as is reasonable under all the 

circumstances of the case. The prosecuting attorney may produce 

affidavits or other evidence to impeach the affidavits of such witnesses. 

Our finding that Bridges was not denied effective assistant of counsel where Bridges 

asserts that his counsel did not allow him to testify or threaten to terminate representation 

is determinative of this assignment of error. The remaining reasons enumerated above 

for possibly granting a motion for a new trial are not applicable to Bridges claims and 
therefore will not be reviewed. We find nothing in the record supporting Bridges’s 

assertion that he was prevented from having a fair trial. Therefore, we find that the trial 

court did not err by denying Bridges’s motion for a new trial. 

{¶32} Bridges’s third and final assignment of error is overruled. 

{¶33} Judgment is affirmed in part, reversed in part, and remanded for 

resentencing. 

It is ordered that the appellee and appellant split costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________ 

ANITA LASTER MAYS, JUDGE 

MELODY J. STEWART, P.J., CONCURS; 

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY