[Cite as State v. Dunn, 2017-Ohio-518.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

STATE OF OHIO, : 

 : Case No. 15CA1 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

ZACHARY DUNN, : 

 : 

 Defendant-Appellant. : Released: 02/03/17 

_____________________________________________________________ 

APPEARANCES: 

Timothy P. Young, Ohio State Public Defender, and Valerie Kunze, 

Assistant State Public Defender, Columbus, Ohio, for Appellant. 

Justin Lovett, Jackson County Prosecuting Attorney, Jackson, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Zachary Dunn appeals his convictions and sentence in the 

Jackson County Court of Common Pleas after a jury found him guilty of 

three counts of kidnapping, one count of abduction, one count of rape, two 

counts of gross sexual imposition, and one count of felonious assault. 

Appellant submits his convictions were not supported by sufficient evidence, 

and also were against the manifest weight of the evidence. He also argues 

the trial court erred when it failed to merge convictions for gross sexual 

imposition with rape and convictions for kidnapping with abduction. Upon 
Jackson App. No. 15CA1 2

review, we find no merit to Appellant’s arguments. The trial court did not 

err. Accordingly, we overrule Appellant’s assignments of error and affirm 

the judgment of the trial court. 

FACTS 

{¶2} On September 26, 2013, Zachary Dunn was indicted by the 

Jackson County Grand Jury as to the following counts: 

Counts One, Two, and Three: Kidnapping, in violation of 

R.C. 2905.01(A)(2)/(A)(3) 

 and (A)(4); 

Counts Four and Five: Abduction, in violation of R.C. 

2905.02(A)(1)/(A)(2); 

Count Six: Rape, in violation of R.C. 

 2907.02(A)(1)(b); 

Counts Seven and Eight: Gross Sexual Imposition, in 

 violation of R.C. 

 2907.05(A)(4)/(B); and, 

Count Nine: Felonious Assault, in violation 

 of R.C. 2903.11(A). 

{¶3} Appellant’s indictment stemmed from events which occurred on 

July 26, 2013 in Jackson County, Ohio. On that date, M.S., a six-year-old 

child, was reported missing from her home at 2:10 a.m.1

 An Amber Alert 

was issued and authorities searched neighborhoods, creeks, and fields. 

 

1

 Stephen Moore, who worked as dispatcher for the City of Jackson, testified that the report of M.S.’s 

disappearance was called in by her father at 2:10 a.m., and he indicated M.S. disappeared between 1:30 and 

1:40 a.m. Some family members and neighbors initially undertook searching for her in her own 

neighborhood. After they were unsuccessful and the matter was reported, a full-scale search began. 
Jackson App. No. 15CA1 3

Fortunately, M.S. was discovered alive at 4:00 p.m. the same day at a 

residence near Landrum Cemetery on Oakland Road in rural Jackson 

County. However, she had been beaten, raped, and abandoned in a dark 

wooded area. 

{¶4} In this case, Appellant had been at M.S.’s home twice and just 

hours before her disappearance. Appellant lived on S.R. 776 in Jackson 

County with his girlfriend, Alisa Yates, and her three young daughters.2

 On 

the night of M.S.’s disappearance, Franklin Stewart Sr. (“Frank Sr.”), M.S.’s 

father, left M.S. in the care of Austin Coon (“Austin”), a teenage boy who 

was a friend of the family. After M.S. disappeared, Austin reported that 

Appellant had stopped by the home a second time, around 1:30-1:35 a.m. 

{¶5} Austin advised that Appellant was wearing a brown or tan 

Carhart jacket and that he drove away in a dark-colored Chevy Cavalier. 

Appellant was later observed on surveillance footage in a convenience store 

in the area buying beer at 12:37 a.m., prior to his second visit to the Stewart 

residence. In the surveillance footage, Appellant is viewed wearing a green 

Carhart jacket. 

{¶6} Officers were dispatched to Appellant’s residence at 3:20 a.m. 

 

2

 When these events occurred, Yates was pregnant with Appellant’s child. 
Jackson App. No. 15CA1 4

on July 26th, where they found Appellant and Alisa Yates. Appellant 

advised he had been home all evening. Alisa Yates also indicated, to her 

knowledge, Appellant had been home in bed all evening. However, a 

trooper assisting in the investigation discovered that a green Chevy Cavalier 

parked at the residence was warm and the seat had been pushed back. Yates 

verified she owned the green Chevy Cavalier and that Appellant owned a 

green Carhart coat. 

{¶7} Also, at 9:31 a.m. on July 26th, a green Carhart jacket was 

discovered in Landrum Cemetery on the ground. BCI personnel, who later 

tested the jacket, discovered the presence of M.S.’s DNA. Although M.S. 

did not describe the place where she was assaulted as a cemetery, she later 

testified that there were lots of trees and it was dark. The residence where 

M.S. was located was approximately one-half mile from the cemetery. 

{¶8} At the time she was taken, M.S. resided with her estranged 

parents, Frank Sr. and Brenda. Brenda was in jail in another county on the 

night of M.S.’s disappearance. The Stewarts have five other children: 

Franklin Stewart, Jr. (“Frank Jr.”), age 22; Tyler, age 21; Tiashawnia,3

 age 

19; N.S., age 15; and S.S., age 9. Several law enforcement officers who 

 

3

 Tyler and Tiashawnia were not living in the home at the time M.S. was kidnapped. 
Jackson App. No. 15CA1 5

testified indicated they were familiar with M.S. and the Stewart home as a 

result of previous calls to the residence.4

{¶9} On September 27, 2013, Appellant was arraigned and entered 

pleas of not guilty to all charges. The trial court set bond at $500,000.00 

cash or surety and scheduled pretrial hearings and a trial date. Eventually, 

Appellant proceeded to a jury trial which took place between March 16, 

2015 and April 1, 2015. Various media outlets followed the case from its 

inception through the trial. 

{¶10} The State of Ohio presented testimony from various witnesses 

which included M.S., her father, Austin Coon, the teenagers who found 

M.S., local law enforcement who investigated her disappearance, medical 

professionals who treated her, agents and scientists from the Ohio Bureau of 

Criminal Identification and Investigation (BCI), Alisa Yates, and others. 

The jury was taken on a view of the scenes of M.S.’s home, Appellant’s 

home, and Landrum Cemetery. The State and the defense introduced 

numerous exhibits.5

 

 

4

 Jackson County Sheriff Tedd Frazier testified he knew M.S. and was familiar with the Stewart residence 

as he had responded there on reports of drunk and disorderly conduct, domestic violence, and possession of 

narcotics. Investigator Michael Music and Sgt. Scott Conley, both of the Jackson Police Department, were 

also familiar with M.S. and the Stewart residence. 

5

 The date of the incident and the venue were not disputed. That M.S. was under the age of 13 years old at 

the time was not disputed. Appellant has not challenged the authenticity or the chain of custody of the 

exhibits nor the designation of expert witnesses. 
Jackson App. No. 15CA1 6

{¶11} On April 1, 2015, the jury rendered guilty verdicts on eight 

counts.6

 The parties were given additional time to file sentencing briefs. 

Sentencing was held on May 27, 2015 and June 11, 2015.7

 M.S.’s parents 

addressed the court. Appellant was sentenced to consecutive terms of life 

imprisonment on kidnapping (Count 3), and life without parole on rape 

(Count 6). He received prison terms of 36 months for abduction, 60 months 

for gross sexual imposition (Count 7)8

, and eight years for felonious assault 

(Count 9). 

{¶12} This timely appeal followed. Additional facts and the 

testimony of various witnesses will be summarized below. 

ASSIGNMENTS OF ERROR 

“I. ZACHARY DUNN’S CONVICTIONS WERE NOT 

SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION 

OF ZACH’S RIGHT TO DUE PROCESS OF LAW UNDER 

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION, AND ARTICLE I, 

SECTION 10 OF THE OHIO CONSTITUTION.” 

“II. ZACHARY DUNN’S CONVICTIONS WERE AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE, IN 

VIOLATION OF ZACH’S RIGHT TO DUE PROCESS OF 

LAW UNDER THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES 

 

6

 Appellant was found not guilty of abduction, Count 4. Counts 1, 2, and 3 contained Sexually Violent 

Predator specifications. On April 20, 2015, the State moved to dismiss those specifications. On April 22, 

2015, the trial court granted the State’s motion. 

7

 The State conceded that the kidnapping counts merged for purposes of sentencing. 8

 Although not explicitly set forth, it appears the gross sexual imposition counts were also merged for 

purposes of sentencing. 
Jackson App. No. 15CA1 7

CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE 

OHIO CONSTITUTION.” 

A. STANDARD OF REVIEW 

{¶13} A claim of insufficient evidence invokes a due process concern 

and raises the question of whether the evidence is legally sufficient to 

support the verdict as a matter of law. Wickersham at 22; State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When 

reviewing the sufficiency of the evidence, our inquiry focuses primarily 

upon the adequacy of the evidence; that is, whether the evidence, if believed, 

reasonably could support a finding of guilt beyond a reasonable doubt. 

Thompkins, syllabus. The standard of review is whether, after viewing the 

probative evidence and inferences reasonably drawn therefrom in the light 

most favorable to the prosecution, any rational trier of fact could have found 

all the essential elements of the offense beyond a reasonable doubt. Jackson 

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979); State v. Jenks, 61 Ohio 

St.3d 259, 273, 574 N.E.2d 492 (1991). Furthermore, a reviewing court is 

not to assess “whether the state's evidence is to be believed, but whether, if 

believed, the evidence against a defendant would support a conviction.” 

Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). 

{¶14} Thus, when reviewing a sufficiency-of-the-evidence claim, an 

appellate court must construe the evidence in a light most favorable to the 
Jackson App. No. 15CA1 8

prosecution. Wickersham, supra, at 23; State v. Hill, 75 Ohio St.3d 195, 205, 

661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 

50 (1993). A reviewing court will not overturn a conviction on a 

sufficiency-of-the-evidence claim unless reasonable minds could not reach 

the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 

162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 

N.E.2d 749 (2001). 

{¶15} “Although a court of appeals may determine that a judgment of 

a trial court is sustained by sufficient evidence, that court may nevertheless 

conclude that the judgment is against the weight of the evidence.” 

Wickersham, supra, at 24, quoting Thompkins, 78 Ohio St.3d at 387. 

“ ‘Weight of the evidence concerns “the inclination of the greater amount of 

credible evidence, offered in a trial, to support one side of the issue rather 

than the other. It indicates clearly to the jury that the party having the 

burden of proof will be entitled to their verdict, if, on weighing the evidence 

in their minds, they shall find the greater amount of credible evidence 

sustains the issue which is to be established before them. Weight is not a 

question of mathematics, but depends on its effect in inducing belief.’ ” 

Wickersham, supra, at 24, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 
Jackson App. No. 15CA1 9

2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d 

at 387, quoting Black's Law Dictionary 1594 (6th Ed.1990). 

{¶16} When an appellate court considers a claim that a conviction is 

against the manifest weight of the evidence, the court must dutifully 

examine the entire record, weigh the evidence, and consider the credibility 

of witnesses. The reviewing court must bear in mind, however, that 

credibility generally is an issue for the trier of fact to resolve. Wickersham, 

supra, at 25; State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); 

State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. 

“ ‘Because the trier of fact sees and hears the witnesses and is particularly 

competent to decide “whether, and to what extent, to credit the testimony of 

particular witnesses,” we must afford substantial deference to its 

determinations of credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 

2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. 

Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd 

Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley court 

explained: 

“ ‘[I]n determining whether the judgment below is manifestly 

against the weight of the evidence, every reasonable intendment 

must be made in favor of the judgment and the finding of facts. 

* * * 
Jackson App. No. 15CA1 10

If the evidence is susceptible of more than one construction, the 

reviewing court is bound to give it that interpretation which is 

consistent with the verdict and judgment, most favorable to 

sustaining the verdict and judgment.’ ” Eastley at ¶ 21, quoting 

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 

N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, 

Appellate Review, Section 60, at 191-192 (1978). 

Thus, an appellate court will leave the issues of weight and credibility of the 

evidence to the fact finder, as long as a rational basis exists in the record for 

its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-

Ohio-1282,¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 

2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has 

some factual and rational basis for its determination of credibility and 

weight.”). 

{¶17} Once the reviewing court finishes its examination, the court 

may reverse the judgment of conviction only if it appears that the fact-finder, 

when resolving the conflicts in evidence, “ ‘clearly lost its way and created 

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

and a new trial ordered .’ ” Wickersham, supra, at 26, quoting Thompkins,

78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1st Dist.1983). A reviewing court should find a conviction 

against the manifest weight of the evidence only in the “ ‘exceptional case in 

which the evidence weighs heavily against the conviction.’ ” Id., quoting 
Jackson App. No. 15CA1 11

Martin, 20 Ohio App.3d at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 

721 N.E.2d 995 (2000). 

{¶18} When an appellate court concludes that the weight of the 

evidence supports a defendant's conviction, this conclusion necessarily 

includes a finding that sufficient evidence supports the conviction. 

Wickersham, supra, at 27; State v. Pollitt, 4th Dist. Scioto No. 08CA3263, 

2010-Ohio-2556, ¶ 15. “ ‘Thus, a determination that [a] conviction is 

supported by the weight of the evidence will also be dispositive of the issue 

of sufficiency.’ ” State v. Lombardi, 9th Dist. Summit No. 22435, 2005-

Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462 

(Sept. 17, 1997). 

{¶19} Here, we first consider Appellant's argument that his 

conviction is against the manifest weight of the evidence. Having reviewed 

the entire record, weighed the evidence, and considered the credibility of the 

witnesses presented at Appellant’s trial, we find Appellant’s convictions on 

8 of the 9 counts are not against the manifest weight of the evidence. 

B. LEGAL ANALYSIS 

{¶20} The kidnapping statute, R.C. 2905.01, provides in pertinent 

part as follows: 

“(A) No person, by force, threat, or deception, or, in the case of 

a victim under the age of thirteen * * * by any means, shall 
Jackson App. No. 15CA1 12

remove another from the place where the other person is found 

or restrain the liberty of the other person, for any of the 

following purposes: 

* * * 

(2) To facilitate the commission of any felony or flight 

thereafter; 

(3) To terrorize, or to inflict serious physical harm on the victim 

or another;9

(4) To engage in sexual activity, as defined in section 2907.01 

of the Revised Code, with the victim against the victim's will 

* * *.”10

{¶21} The abduction statute, R.C. 2905.02(A)(2), provides as 

follows: 

“(A) No person, without privilege to do so, shall knowingly do 

any of the following: 

 * * * 

(2) By force or threat, restrain the liberty of another person 

under circumstances that create a risk of physical harm to the 

victim or place the other person in fear * * *.” 

{¶22} The rape statute, R.C. 2907.02, provides in pertinent part: 

“(A) 

(1) No person shall engage in sexual conduct with another who 

is not the spouse of the offender * * * when any of the 

following applies: 

* * * 

(b) The other person is less than thirteen years of age, whether 

or not the offender knows the age of the other person.” 

{¶23} Gross sexual imposition, as defined by R.C. 2907.05, provides 

in relevant part: 

 

9

 The trial court defined “serious physical harm” in the jury instructions. 

10 The trial court also provided the definitions of “sexual activity,” “sexual conduct,” and “sexual contact,” 

in the instructions. 
Jackson App. No. 15CA1 13

“(A) No person shall have sexual contact with another, not the 

spouse of the offender * * * when any of the following applies: 

* * * 

(4) The other person, or one of the other persons, is less than 

thirteen years of age, whether or not the offender knows the age 

of that person. 

* * * 

(B) No person shall knowingly touch the genitalia of another, 

when the touching is not through clothing, the other person is 

less than twelve years of age, whether or not the offender 

knows the age of that person, and the touching is done with an 

intent to abuse, humiliate, harass, degrade, or arouse or gratify 

the sexual desire of any person.” 

{¶24} And, Count 9, felonious assault, R.C. 2903.11(A)(1) provides 

that “[N]o person shall knowingly * * * cause serious physical harm to 

another * * *.” 

{¶25} As indicated above, we find competent credible evidence 

supports the jury’s determination that Appellant was the person who 

removed M.S. from her home, restrained her liberty, and committed the 

indicted felonies. While much of the evidence is circumstantial, “[D]irect 

evidence of a fact is not required. Circumstantial evidence * * * may also be 

more certain, satisfying, and persuasive than direct evidence.” State v. 

Grube, 2013-Ohio-692, 987 N.E.2d 287 (4th Dist.), ¶ 30, quoting State v. 

Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990), citing Michalic v. 

Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10, (1960), citing 

Rogers v. Missouri Pacific RR Co, 352 U.S. 500-508, fn. 17, 77 S.Ct. 443, 
Jackson App. No. 15CA1 14

449, fn. 17, (1957). Even murder convictions and death sentences can rest 

solely on circumstantial evidence. Grube, supra, citing State v. Apanovitch, 

33 Ohio St.3d 19, 514 N.E.2d 394 (1987); State v. Nicely, 39 Ohio St.3d 

147, 151, 529 N.E.2d 1236, 1239 (1988). We begin by setting forth the 

pertinent portions of testimony and other relevant evidence. 

1. Austin Coon 

{¶26} Austin testified on July 25, 2013, Frank Sr. called Austin and 

asked him to babysit. Austin agreed and went to the Stewart house before 

dark.11 Austin testified he thought of M.S. as a “little sister,” and he babysat 

M.S. and S.S. when their parents went “out to the bars.” Appellant stopped 

by and asked if Frank Sr. had a CD player for sale. Austin did not know 

Appellant at that time. When Appellant left, Frank Sr. gave him Appellant’s 

name. 

{¶27} Later, Frank Sr., Frank Jr., and N.S. left to go to get air in a tire 

at Mike’s One Stop. Austin was alone with M.S. and S.S. Austin testified 

they were in Brenda’s room.12 M.S. was on the computer playing games and 

Austin was using his cell phone to access Facebook. S.S. was asleep on the 

couch in the living room. Austin testified Appellant knocked on the door 

and asked for Frank Sr. Austin let him inside to wait. Austin went back to 

 

11 In a second written statement given to police, Austin gave 11:45 p.m. as his arrival time. 

12 The evidence indicates “Brenda’s room” was the parents’ bedroom. 
Jackson App. No. 15CA1 15

the bedroom and Appellant followed him. Austin recalled Appellant was 

wearing a brown or tan Carhart jacket. 

{¶28} Approximately 5 minutes later, Appellant said he was going to 

his brother’s house to get cigarettes. Appellant walked onto the porch and 

M.S. ran outside. Austin repeatedly told her to go back in, but she did not 

obey. Appellant said he would “bring her back inside.” Austin went inside 

briefly to the kitchen to get a drink. When he came back from the kitchen, 

M.S. was gone. He looked outside and saw a dark green or dark blue Chevy 

Cavalier with tinted windows pulling away. Austin testified Appellant was 

first at the residence around midnight. The second time Appellant was there, 

when M.S. disappeared, was around 1:30-1:35 a.m. 

{¶29} Austin began calling for M.S. and looking for her outside the 

house. Frank Sr. and the others returned soon after. When Austin informed 

Frank Sr. that M.S. was gone, they began looking for her in the surrounding 

area. When they could not find her, Frank Sr. called the police. 

{¶30} Austin was eventually taken to the police station where he 

wrote two statements which he identified for the jury. He testified the short 

statement, his first one, was false. He also admitted that he was unable to 

identify Appellant both in a photo array and during a chance encounter at the 
Jackson App. No. 15CA1 16

police station. Austin testified he was nervous at the police station and not 

paying close attention. 

{¶31} However, Austin identified Appellant at trial as the individual 

who was at the Stewart residence on July 26, 2013. Austin testified when he 

last saw M.S. on July 26th, she did not have injuries to her face or body. 

Austin was shown various photographs of M.S.’s injuries and denied that 

she had any injuries before she was taken. 

2. Franklin Stewart Sr. 

{¶32} Frank Sr. testified that when M.S. disappeared, he was the sole 

caretaker for the minor children. Austin stayed at his house several nights a 

week and he trusted Austin with the younger children. Austin treated them 

like they were his little siblings. Frank Sr. knew Appellant from selling and 

trading goods. He also knew Appellant used pain pills. 

{¶33} On July 25th, Appellant came to the Stewart residence looking 

for a CD player. Frank Sr. gave him one and told him to bring the money 

back later. Then on July 26th, around 12:30 a.m., Michael Denney, his son’s 

friend, came to the house, advising that Frank Jr. had a flat tire. Before 

leaving to assist with the tire, he asked Austin to watch the younger children. 

M.S. was in the living room watching TV. She was wearing a black 
Jackson App. No. 15CA1 17

swimsuit with a flower on it.13 Frank Sr. was gone approximately one hour. 

When he left, M.S. had no injuries.14

{¶34} When Frank Sr. returned from the convenience store, Austin 

acted scared and nervous, and said that he couldn’t find M.S. After they 

searched the house, the basement, and the neighborhood for approximately 

30 minutes, Frank Sr. called the police. He told them he thought Appellant 

had taken M.S. Frank Sr. denied telling Austin to lie to the police. 

{¶35} Frank Sr. testified Austin told him the “guy that bought the 

radio earlier” had returned and asked to use the phone. When Austin went to 

get the phone, Appellant was gone and M.S. was missing. Frank Sr. also 

identified Appellant in the courtroom. 

3. Michael Denney 

{¶36} Denney, a friend of Frank Jr.’s, testified on July 25, 2013, he 

and Frank Jr. had been in jail. They were released around 11:00 p.m. and 

walked to the Stewart residence. When they arrived, Frank Sr. and 

Appellant were on the porch talking. When Appellant left, he got into a 

 

13 Another witness, Cassie Martin, testified that M.S. had been swimming at her house on July 25, 2013. 

14 On cross-examination, Frank Sr. clarified he fixed a tire at the house earlier in the day and then fixed 

another one later that day at Mike’s One Stop. 
Jackson App. No. 15CA1 18

dark-colored Chevy Cavalier. Later he and the Stewarts went to Bud’s One 

Stop to fix a tire.15 16

4. Eric Dunn 

{¶37} Eric Dunn is Appellant’s brother. After authorities learned that 

Appellant had been to the home just before M.S. disappeared, Sgt. Scott 

Conley went to Eric Dunn’s residence and inquired as to when he had last 

seen his brother. Dunn testified Appellant had stopped by around 12:30 a.m. 

wanting to get beer. He was driving a green Cavalier. Dunn provided 

Appellant’s address. 

5. The Investigating Officers 

{¶38} Sgt. Conley and Investigator Mike Music went to Eric Dunn’s 

house. Conley testified Eric Dunn confirmed to them that Appellant had 

stopped by between 12:00 and 12:30 a.m. wanting to get beer. Dunn also 

advised Appellant mentioned getting a CD player from Frank Stewart. 

Conley next went to the closest gas station/convenience store in the area, 

“The Filling Station,” and requested surveillance video. 

{¶39} Sgt. Conley and Trooper Shaner were also dispatched to 

Appellant’s residence to question him. Appellant repeatedly denied to 

 

15 The name of the store where the parties went to change the flat tire was recalled as Mike’s One Stop or 

Bud’s One Stop. 

16 On cross-examination, Denney’s credibility was challenged as to his recollection about Appellant’s 

leaving and getting into a car, as well as his criminal background. However, he had acknowledged on 

direct examination that he was on felony probation for possession of heroin. 
Jackson App. No. 15CA1 19

Conley that he had left during the evening, even upon being advised that 

three people had placed him in town earlier. Conley observed that Appellant 

is six feet three inches tall while Alisa Yates, his girlfriend, is five feet four 

inches tall. 

{¶40} Trooper Shaner testified he investigated the Chevy Cavalier at 

Appellant’s residence, noted the windows were “fogged up” and the car felt 

warm underneath in the fender well. He also noted the driver’s seat was a 

significant distance away from the steering wheel.17 During his testimony, 

Sgt. Conley explained the significance of the findings on the Chevy 

Cavalier. He testified the seat being pushed back and the engine being warm 

indicated the car had been driven previously. 

{¶41} Patrolman Sprague testified on July 29th he was dispatched to 

Landrum Cemetery with his K9, Ze, a tracking dog. He did not find 

evidence but Ze circled an area where the grass was flattened. Investigator 

Music was also investigating the cemetery on July 29th and recalled that the 

K9 was circling in the area where the employees found the green jacket. 

{¶42} Conley further testified on July 30th, he obtained the 

surveillance video from The Filling Station which showed Appellant 

entering the store between 12:30 and 12:35 a.m. on July 26th. Appellant 

 

17 Trooper Shaner’s testimony was also corroborated by another officer, Sgt. Keith Copas of the Jackson 

County Sheriff’s Office, who assisted at the 776 address. 
Jackson App. No. 15CA1 20

was wearing a green Carhart coat. While Conley was watching the 

surveillance video at the store, they received a call that the Liberty Township 

trustees had located a green Carhart jacket at Oakland Cemetery on July 

26th. Conley immediately went to the cemetery, met with the trustees, and 

obtained the jacket, which resembled the one Appellant was wearing in the 

video footage. The jacket was bagged, sealed, and sent to BCI. Conley 

identified the video footage of Appellant and identified the green jacket for 

the jury. 

{¶43} Investigator Music’s testimony mirrored Sgt. Conley’s in many 

respects. He recalled Eric Dunn advising that Appellant drove the Chevy 

Cavalier to his house. 

6. Alisa Yates 

{¶44} Alisa Yates testified she had dated Appellant for 3 years and 

they lived together. On July 25th, Yates returned home from her job at 

Pizza Hut around 10:00 p.m. and Appellant was there, watching TV and 

drinking beer. Her children were asleep. 

{¶45} Yates went to bed around 11:00 p.m. and around 3:00 a.m. 

police were knocking at her door. Appellant was in bed beside her. She 

opened the door and they questioned Appellant. Yates told the officers she 
Jackson App. No. 15CA1 21

thought Appellant had been home all night because he was there when she 

went to sleep. Appellant also denied leaving the house. 

{¶46} Yates testified Appellant owned a green Carhart coat, and she 

identified the coat for the jury. She also identified her green Chevy Cavalier 

by the license plate, although the car looked blue in the pictures. Yates 

testified there was a CD player in the back seat of the car that wasn’t hers. 

Yates denied taking Appellant to town after 10:00 p.m. on the 25th, and to 

her knowledge the car had not been moved since she came home from work 

on the 25th. 

{¶47} After the officers left, Yates investigated her car and noticed 

the gas tank was empty. She also noticed the seat was not in the position she 

had left it in when she came home from work. She does not drive with the 

seat “leaned back.” Yates testified she began to feel sick. 

{¶48} The next day after M.S. was found, Alisa texted Appellant 

while she was at work and advised him about her. She testified Appellant 

responded “I was thinking the worst that they would find her dead and blame 

me. That shit isn’t cool at all. I’m never talking to anyone again unless you 

are.” 
Jackson App. No. 15CA1 22

{¶49} Yates also testified Appellant had a friend who lived on 

Oakland Road, near Landrum Cemetery. She and Appellant had been to his 

residence quite a few times. 

7. The Teenagers who found M.S. 

{¶50} Three teenagers found M.S. and described, similarly, that she 

was completely naked, crying, asking for her mother, and obviously injured. 

K.D. testified that M.S. had black and blue swollen eyes and cuts on her legs 

and feet. K.D.’s sister Kaycee Davis testified M.S. did not look exactly like 

the missing child report she had seen because of her facial injuries and 

swelling. The teenagers gave M.S. crackers and clothing. They 

immediately called 911. 

8. M.S. 

{¶51} At the time of trial, M.S. was 8 years old and in the first grade. 

She was living with foster parents. On day three of trial, M.S. testified 

“something bad” happened to cause her to go to the hospital. She did not 

know the person who was “mean” to her and had never seen him before.18

 {¶52} M.S. testified on July 26, 2013, she was at home in her 

mother’s room using the computer. M.S. testified the mean person lied to 

 

18 Sgt. Conley’s testimony included that when he responded to the scene where M.S. was found, M.S. told 

him that she was taken by a tall man with short hair. 
Jackson App. No. 15CA1 23

“Coony” (Austin Coon), and said he was leaving to get “smokes.” M.S. 

testified Austin was in the kitchen when she left with the man. 

{¶53} M.S. testified she got into the man’s car because he said he’d 

give her a piece of candy. The car was dark blue. No one else was in the 

car. The mean person took her to a place outside where there were trees and 

grass.19

{¶54} M.S. testified the “mean person” hit her eye and she cried. He 

told her to shut up. Then he hurt her face and her “bad spot.”20 Shortly after 

this testimony, M.S. became emotional and court recessed. 

{¶55} When her testimony resumed, M.S. testified she was wearing 

her bathing suit. She indicated by shaking her head “yes” that the mean man 

removed her bathing suit, and indicated by shaking her head “no” that no 

one else was with her or the man. M.S. also indicated by nodding her head 

“yes” that she was lying down when the events occurred. 

{¶56} After the man hurt her, he drove away. It was still night time. 

M.S. testified she cried and walked to where a nice girl found her and gave 

her clothes and crackers. 

9. The Medical Witnesses 

 

19 Stephanie Herron, a BCI agent, testified she processed Landrum Cemetery and described it as “full of 

trees,” with “full foliage,” and “difficult to see from the road.” 20 M..S. pointed to her eye. She also indicated she wore clothes over the bad spot. The prosecutor asked 

her to draw clothing on the “bad spot” on one of the exhibits and she drew pants. 
Jackson App. No. 15CA1 24

{¶57} M.S. was immediately taken to Adena Regional Medical 

Center ER. Jamie Myers, a pediatric sexual assault nurse examiner (SANE) 

on duty, testified M.S. presented withdrawn and tearful. She had “horrible 

bruising and swelling” to her face and was “caked” in dirt and mud. Due to 

the facial injuries, a CT scan was ordered. The report did not show injury to 

the brain.21 Myers identified a series of photographs showing M.S.’s 

injuries when she presented on July 26th as accurate depictions. 

{¶58} Due to M.S.’s presentation and the fact she was found naked, a 

sexual assault exam was also performed. Myers observed a laceration, 

bruising, and active bleeding in the vaginal area. She collected DNA swabs 

of the mouth, vaginal, and rectal areas. Myers opined to a reasonable degree 

of medical certainty that M.S.’s vaginal canal was penetrated, indicative of 

blunt force trauma.22

{¶59} Dr. Scott McAllum, a pediatrician at Adena Health Systems, 

testified he was contacted by either Julie Oates or Jamie Myers and upon 

discussion of M.S.’s facial injuries, head trauma, and some increased 

swelling, there was concern for closed head injury. Together they decided 

 

21 Myers described bruising and swelling on both sides of M.S.’s face, broken blood vessels under the skin 

of her neck caused by blunt force trauma or possible attempted strangulation, and bruises on her back and 

legs. 

22 Brittany Baisden, another SANE on duty that night, assisted with preparation of the sexual assault 

evidence kit and photographic documentation. Her testimony mirrored that of Jamie Myers. She also 

opined M.S.’s injuries were consistent with penetration. She recalled M.S. had no family member with her. 
Jackson App. No. 15CA1 25

M.S. should be admitted overnight. Dr. McAllum examined M.S. the next 

morning and also opined, to a reasonable degree of medical certainty, her 

injuries to the vaginal area were consistent with penetrating blunt force 

trauma to the vaginal area.23 

{¶60} Julie Oates, executive director of the Child Protection Center 

of Ross County, testified she is a licensed professional counselor who 

provides forensic interviews and counseling for children impacted by 

trauma. She attempted to interview M.S. three times. 

{¶61} During the first interview, M.S. held her face, which was red, 

swollen, and painful. As they talked, she began shaking. M.S. told Oates 

that “he beat her up” and he “left her.” They terminated the interview and 

M.S. was hospitalized for observation. 

{¶62} When M.S. was discharged the next morning, she returned for 

a second interview. She was initially talkative, but as they discussed the 

incident she became tearful and said she missed her mother. She advised the 

perpetrator punched her and she also pointed to her genital area and stated 

that he “hurt her bad front.” She became further upset when she looked in a 

 

23 Another physician, Dr. Zoran Naumovski, a medical examiner for the Child Protection Center, testified 

he saw M.S. on August 13, 2013 in follow-up. He reviewed her records and conducted a physical exam. 

He opined, to a reasonable degree of medical certainty, she had been physically and sexually abused and 

emotionally traumatized. 
Jackson App. No. 15CA1 26

mirror, said she missed her mother, and the interview was terminated. Oates 

testified the third interview yielded no new meaningful information. 

10. The Township Employees 

{¶63} Randolf Baker testified he and Alden Mapes, Sr., employees of 

Liberty Township Trustees, were checking the roads and Landrum Cemetery 

on Friday, July 26, 2013. They stopped to urinate behind the dense foliage 

around 9:31 a.m. and discovered a green Carhart coat, laid open, with the 

back to the ground. Mapes picked up the coat and returned it to the 

township house, thinking it belonged to the grass cutter. They were unaware 

M.S. was missing. 

{¶64} When Officer Music stopped by on Monday investigating the 

missing child case, they gave the coat to him, showed him where it was 

found, and that the grass was “flattened” to the shape of the coat. On crossexamination, Baker admitted he initially threw the coat in the back of the 

dump truck the men were driving and did not handle it with special care. He 

also acknowledged that they haul gravel and trash in the truck. 

{¶65} Alden Mapes, Sr., the other employee, corroborated Baker’s 

testimony. He further testified the jacket was lying perfectly flat on the 

back, unzipped in the front, with the arms lying all the way down. He 

thought it odd that it was found in that manner. 
Jackson App. No. 15CA1 27

11. The BCI Witnesses 

{¶66} Abby Schwaderer, a quality assurance manager for the BCI 

laboratory system, was permitted to testify as an expert in the area of 

forensic DNA. Her testimony was lengthy. Schwaderer testified she 

conducted DNA analysis regarding M.S. in 2013. She testified on the green 

Carhart coat interior there was a mixture of two individuals’ DNA: 

Appellant and M.S. She opined to a reasonable degree of medical certainty 

that the DNA observed on the interior of the Carhart coat was consistent 

with M.S.’s DNA. Also, a swab taken from the green Cavalier’s passenger 

side interior door handle included M.S.’s DNA. On cross-examination, 

Schwaderer admitted DNA lasts forever and her testing is unable to show 

how long DNA is on an item, how it got there, why it is there, or under what 

circumstances. 

{¶67} While the State’s case against Appellant relied on 

circumstantial evidence, our standard of review is still the same. 

“Circumstantial evidence and direct evidence inherently possess the same 

probative value and therefore should be subject to the same standard of 

proof. When the state relies on circumstantial evidence to prove an essential 

element of the offense charged, there is no need for such evidence to be 

irreconcilable with any reasonable theory of innocence in order to support a 
Jackson App. No. 15CA1 28

conviction.” State v. Bradford, 1st Dist. Hamilton No. C-04-382, 20015-

Ohio-2208, ¶ 24. 

{¶68} The defense did not dispute M.S. was beaten, raped, and 

abandoned. In sum, the compelling and overwhelming circumstantial 

evidence established that Appellant was at the Stewart home immediately 

before M.S. disappeared, wearing a Carhart jacket and leaving in a darkcolored Chevy Cavalier. Appellant repeatedly told officers he had not left 

his home all evening, while Frank Sr. and Austin Coon both testified 

Appellant had been there earlier on July 25th. Michael Denney’s testimony 

also places Appellant at the Stewart residence and in a dark-colored Chevy 

on the date and time in question. And, Austin Coon specified that Appellant 

was present just before M.S. disappeared, around 1:30-1:35 a.m. 

{¶69} M.S. testified the man who hurt her offered her a piece of 

candy, and she got into his dark blue car. She testified it happened while 

Austin was in the kitchen. No one else was with her and the perpetrator. 

{¶70} Furthermore, Alisa Yates verified that she owned the Cavalier, 

which was the only car they had for transportation. She verified that the car 

was not the way she had left it when she went to bed in the late evening of 

the 25th. She also verified that Appellant owned the green Carhart jacket 
Jackson App. No. 15CA1 29

and that Appellant was familiar with the area where Landrum Cemetery is 

located as she had been there with him many times to visit a friend. 

{¶71} Importantly, BCI personnel later tested the green Carhart 

jacket and discovered the presence of M.S.’s DNA on it. Appellant was 

wearing the green jacket on the surveillance video and when he stopped by 

the Stewarts the second time. The township workers found the green jacket 

at 9:31 a.m. on July 26th, in Landrum Cemetery, while M.S. was still 

missing. M.S. was found later on July 26th at 4:00 p.m. at a location onehalf mile from the cemetery. 

{¶72} Through cross-examination and closing arguments, Appellant’s 

counsel set forth a vigorous defense. Counsel emphasized as follows: 

 1) That the credibility of Frank Sr., Austin Coon, and 

Michael Denney was suspect; 

2) That reasonable doubt existed in that Austin Coon or 

Jeff Keelz may have been involved.24

3) That police did not follow up on a tip called in 

around the same time M.S. disappeared indicating 

someone driving an older model Chevy Cavalier was 

“looking for a child to abduct.” 

4) That the integrity of the evidence was questionable 

because the green Carhart jacket was first thrown into the 

 

24 Cassie Martin testified she went to the Stewart house immediately upon learning of M.S.’s 

disappearance. She noticed Austin Coon, who had been at her house on July 25th, had changed the clothes 

he was wearing on the 25th by the time she saw him at the Stewarts. Martin also testified she overheard 

Frank Sr. and Frank Jr. “coaching” Austin Coon as what to tell the police. Jeff Keelz was Brenda Stewart’s 

friend or paramour. 
Jackson App. No. 15CA1 30

back of a township truck and not turned over as evidence 

until a couple of days later; 

5) That Austin Coon failed to immediately identify 

Appellant; and, 

6) That M.S. initially told Julie Oates that Frank Jr. took 

her to a park the night she was taken and during the 

second interview she indicated that Austin or her brother 

had been in the car was when she was taken. 

{¶73} However, Frank Sr. and Austin Coon were cross-examined 

vigorously about the conflicting testimony and Austin’s initial lies to law 

enforcement. Defense counsel also emphasized Austin’s initial failure to 

identify Appellant. Counsel also elicited testimony from the BCI personnel 

which acknowledged that DNA testing is unable to pinpoint when and how 

DNA is found on an item and that transference and cross-contamination of 

DNA can occur. 

{¶74} Additionally, Counsel emphasized that Austin could not say 

for sure that the person driving the Cavalier away from the Stewart residence 

was Appellant, that M.S. was inside the car, or that Austin saw Appellant 

take M.S. Counsel emphasized that there was no testimony that anyone saw 

Appellant take M.S., beat her, or rape her. The jury also heard M.S.’s 

testimony that she did not know the person who hurt her.25 

 

25 M.S. testified Austin and her mother’s friend Jeff were “nice.” It is difficult to imagine M.S. could 

credibly testify, without breaking down in some manner, that these persons longtime known to her were 

“nice” if one of them was, in fact, the perpetrator. 
Jackson App. No. 15CA1 31

{¶75} Among the jury instructions given by the trial court was that 

Appellant was to be presumed innocent until his guilt was established 

beyond a reasonable doubt as to every essential element charged in the 

offenses; that the jury might consider direct and circumstantial evidence, and 

that the jury were the sole judges of credibility and weight of the evidence. 

While it is true that several of the witnesses’ credibility was challenged, 

especially Austin Coon’s, it was the province of the jury to resolve conflicts 

in the evidence. A jury sitting as the trier of fact is free to believe all, part or 

none of the testimony of any witness who appears before it. Grube, supra, at 

31; See State v. Long, 127 Ohio App.3d 328, 335, 713 N.E.2d 1 (1998); 

State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (1993). A jury is in 

the best position to view the witnesses and to observe witness demeanor, 

gestures and voice inflections, and to use those observations to weigh 

credibility. See Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 

(1993); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 

1273 (1984). Appellate courts should not generally second guess juries on 

matters of weight and credibility. See State v. Vance, 4th Dist. Athens No. 

03CA27, 2004-Ohio-5370, at ¶ 10.

 
Jackson App. No. 15CA1 32

{¶76} Were the above evidence not enough, the State also presented 

the testimony of BCI Special Agent Steve Burke and Lieutenant Tabitha 

Sprague. Burke testified he conducted a recorded interview with Appellant 

around 10:00 a.m. on July 26th. The interview was played for the jury. 

During the interview, Appellant stated he had never met or seen M.S. He 

was “pretty sure” she had never been in his car. He repeatedly denied 

leaving his house at all, or driving Alisa’s vehicle. He did not know why the 

car was warm at 3:00 a.m. Appellant stated he got in the car to move some 

stuff and probably moved the seat back. Appellant denied leaving even after 

being told Alisa said he left and after being told they would be looking at 

surveillance tapes. 

{¶77} During the interview, Appellant said he knew Frank and had 

been to his house, most recently a week or so prior. Frank sold pills and 

Appellant bought some Vicodin from him.26 He denied knowing anything 

about buying stereo equipment. The jury apparently assigned little or no 

credit to Appellant’s statements in the recorded interview, which completely 

contradicted the testimonies of Austin Coon, Frank Sr., Appellant’s 

girlfriend, and his own brother Eric. 

 

26 We are unsure whether this fact is referencing Frank Sr. or Frank Jr. 
Jackson App. No. 15CA1 33

{¶78} Furthermore, the jury also heard jail recordings of his mother’s 

and brother’s calls and visits with Appellant. Lieutenant Sprague of the 

Jackson County Correctional Facility described the procedure for jail 

visitation and documentation of visits, and she identified the logs of 

Appellant’s visitors to be fair and accurate. Appellant’s mother and brother 

visited him various times and portions of the recordings were played for the 

jury.27 On August 2nd, Appellant can be heard stating “I was really fuckin’ 

drunk that night, but I’m almost a hundred percent I didn’t leave the house 

that fuckin night. I’m almost a hundred percent sure I didn’t leave the house 

that night. That’s my story, and I’m stickin’ to it.” 

{¶79} On an August 9th visit, Appellant’s brother told him they had 

his coat.28 Appellant replied “That’s what I heard. I don’t know about the 

(unintelligible) or how they got it. The only thing I can figure out about that. 

It could be that little girl or something.’ If she was on the porch and in the 

cold she was. I mean, I don’t know.” 

{¶80} On an August 16th visit: 

“Yeah, they got a little bit of shit on me. But the little bit of 

shit they got on me is like (unintelligible). I don’t really one 

hundred percent. I’m honest with you and Mom. I really don’t 

remember what happened that night. But what I do know is 

that I never took that little girl. And if I did, then there was 

 

27 The identity of the parties’ voices was stipulated. 

28 We presume this to be a reference to the green Carhart jacket. 
Jackson App. No. 15CA1 34

somebody else in that car with me. (Unintelligible) little fuckin’ 

kid, when I’ve got four kids of my own. I’d rather give them 

(unintelligible) than somebody else’s. * * * But I’m tellin’ ya 

right now, that night I was on some drugs that I wasn’t used to.” 

{¶81} On August 30th: 

“They wouldn’t have enough evidence to charge me with the 

abduction charge because it has to be without a reasonable 

doubt that I forced that kid to come with me. * * * Not, ‘Here 

baby. I’ve got a Jolly Rancher.’ (Unintelligible) not fuckin’ 

snatch her and grab her. * * * They can’t prove that.” 

{¶82} On September 7th: 

“I’m smarter than that. Even the next day when I wasn’t drunk 

I looked in my car just to make sure some off the wall shit 

didn’t happen. And there wasn’t nothin’ in my fuckin’ car, and 

if there was something’ in my fuckin’ car, they put it there.” 

{¶83} Appellant’s comments in the jail recordings may be interpreted 

as admissions that he did leave his home the night of July 26th, that he did 

go to the Stewart residence, and that the green coat was his. His comments 

may be construed as minimizing his recollection of the events due to drug 

and alcohol use. He seems to indicate that, at least, he could not be 

convicted of abduction. And, he admitted he was “stickin’ to his story.” 

{¶84} Ultimately, the jury was in the best position to determine the 

credibility of the witnesses and the evidence, and we defer to their judgment. 

We do not find this to be the exceptional case where the evidence weighed 

heavily against conviction. Therefore, we do not find the jury lost its way, 
Jackson App. No. 15CA1 35

causing a manifest miscarriage of justice. Based on the foregoing we find 

that competent credible evidence supports the finding that Appellant is the 

person who removed M.S. from her home, committing the felonies of 

kidnapping and abduction, and further, committing the felonies of rape, 

gross sexual imposition, and felonious assault. As such we overrule 

Appellant’s second assignment of error and affirm the judgment of the trial 

court. 

{¶85} Inasmuch as we have found Appellant’s convictions are 

supported by the manifest weight of the evidence, we further find them to be 

supported by sufficient evidence. Our finding as to Appellant’s “manifest 

weight” argument is dispositive of his sufficiency-of-the-evidence claim. As 

such, we also overrule Appellant’s first assignment of error and affirm the 

judgment of the trial court. 

“III. THE TRIAL COURT ERRED WHEN IT FAILED TO 

MERGE CONVICTIONS FOR GROSS SEXUAL 

IMPOSITION WITH RAPE AND CONVICTIONS FOR 

KIDNAPPING WITH ABDUCTION.” 

A. STANDARD OF REVIEW 

{¶86} Appellate courts apply a de novo standard of review in an 

appeal challenging a trial court's determination of whether offenses 

constitute allied offenses of similar import that must be merged under R.C. 

2941.25. State v. Mullins, 4th Dist. Scioto No. 15CA3716, 2016-Ohio-5486, 
Jackson App. No. 15CA1 36

¶ 11. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 

1245, ¶ 28; State v. Cole, 4th Dist. Athens No. 12CA49, 2014-Ohio-2967, 

¶ 7. 

B. LEGAL ANALYSIS 

{¶87} The Double Jeopardy Clause of the Fifth Amendment to the 

United States Constitution provides that no person shall “be subject for the 

same offense to be twice put in jeopardy of life or limb,” and this protection 

applies to Ohio citizens through the Fourteenth Amendment and is 

additionally guaranteed by Article I, Section 10 of the Ohio Constitution. 

Mullins, supra, at ¶ 8. This constitutional protection prohibits multiple 

punishments for the same offense being imposed in a single trial absent a 

clear legislative intent to the contrary. Id. See North Carolina v. Pearce, 395 

U.S. 711, 717, 89 S.Ct. 2072, (1969), overruled on other grounds, Alabama 

v. Smith, 490 U.S. 794, 109 S.Ct. 2201, (1989); Missouri v. Hunter, 535 U.S. 

359, 103 S.Ct. 673, (1983). 

{¶88} The General Assembly enacted R.C. 2941.25 to specify when 

multiple punishments can be imposed in the same trial: 

(A) Where the same conduct by the 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. 
Jackson App. No. 15CA1 37

(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. Mullins, supra, at 

¶ 9. 

{¶89} Merger is a sentencing question where the defendant bears the 

burden of establishing his entitlement to the protection of R.C. 2941.25 by a 

preponderance of the evidence. Mullins, supra, at ¶ 10. State v. Washington, 

137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. 

{¶90} Under current Ohio law courts can only impose multiple 

punishments in a single trial for a defendant's conduct under two situations: 

1) where the charged crimes are not allied offenses, i.e. it is not possible to 

commit multiple crimes with the same action, State v. Johnson, 128 Ohio 

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061; and 2) the crimes are allied 

offenses but the defendant's actions have dissimilar import, i.e. the crimes 

were committed separately, or with a separate animus, or the resulting harm 

for each offense is separate and identifiable. State v. Ruff, 143 Ohio St.3d 

114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus. See

Mullins, supra, at ¶ 10. 

1. Are Appellant’s convictions for gross sexual imposition and for rape 

allied offenses of similar import? 

{¶91} The trial court found: 
Jackson App. No. 15CA1 38

“The Court finds that there are separate harms suffered by the 

victim. The child testified that the Defendant had touched the 

victim’s breast for sexual or gratifying himself. (Sic.) The 

Defendant created a separate harm when he raped the victim 

since he inserted part of his body in the victim’s vagina. The 

Defendant also caused the victim serious physical harm when 

he committed the rape. The serious physical harm element 

demonstrates that the Defendant had a separate motivation from 

when he committed the gross sexual imposition counts.” 

{¶92} However, Appellant argues this conclusion is not supported by 

the record. He points out M.S. provided very little information about what 

happened to her and the record contains only the medical evidence of 

bruising, scratches, and vaginal penetration. Appellant concludes there was 

no separate harm and there was no separate animus. 

{¶93} In response, the State argues that Appellant raped M.S. by 

forcibly penetrating her vaginal opening with an unidentified object. He 

committed gross sexual imposition by groping her breasts, separate conduct 

that occurs with a separate animus from rape. The State also cites M.S.’s 

testimony that the man removed her bathing suit and the fact that she had 

bruising on her clavicle to reasonably infer that Appellant violently groped 

her breast. The State argues the acts of rape and groping caused separate 

harms. The violent rape, which caused tearing in her genital region, caused 

psychological and serious physical harm. Groping her breasts caused 

psychological harm. The State concludes the trial court did not err. While 
Jackson App. No. 15CA1 39

we agree with the trial court’s ultimate conclusion that merger was not 

required, we do so on a different basis. 

 a. Allied Offenses 

{¶94} Initially, we look to see if the charges Appellant faced 

represent allied offenses. To accomplish that we must look at Appellant’s 

conduct to determine if it was possible to both commit one offense and 

commit the other by that conduct. Johnson at 48; Mullins, supra, at 13. 

{¶95} Rape, R.C. 2907.02, provides: “(A)(1) No person shall engage 

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

when any of the following applies: * * *(b) The other person is less than 

thirteen years of age, whether or not the offender knows the age of the other 

person.” The trial court instructed the jury as to the legal definition of 

“sexual conduct.” The court specified that “Penetration, however slight, is 

sufficient to complete vaginal or anal intercourse.” Jamie Myers and 

Brittany Baisden, the SANEs, and Dr. McAllum all testified M.S. had been 

penetrated in the vaginal area. 

{¶96} Gross sexual imposition, R.C. 2907.05, Count 7, provides in 

relevant part: 

“(B) No person shall knowingly touch the genitalia of another, 

when the touching is not through clothing, the other person is 

less than twelve years of age, whether or not the offender 

knows the age of that person, and the touching is done with an 
Jackson App. No. 15CA1 40

intent to abuse, humiliate, harass, degrade, or arouse or gratify 

the sexual desire of any person.” 

{¶97} M.S. testified and indicated the perpetrator hurt her vaginal 

area. We do not find evidence that Appellant touched M.S.’s breast readily 

apparent or necessarily inferred. However, in order that penetration 

occurred, it necessarily includes that her genital or pubic region was 

touched, thus unclothed touching of her genitalia did occur. It was possible 

that Appellant committed the acts of rape and gross sexual imposition with 

the same conduct. See State v. Vang, 9th Dist. Summit No. 23206, 2007-

Ohio-46, fn.1. As such we find the offenses are allied. 

 b. Dissimilar Import 

{¶98} Even though it was possible for Appellant to commit the above 

offenses with the same conduct, and thus they are allied offenses, we 

conclude he can be separately punished for each one. Appellant’s conduct 

of raping M.S. and his commission of gross sexual imposition were of 

dissimilar import, e.g., they were committed with separate animus and/or 

resulted in separate, identifiable harms. 

{¶99} Here, the act of rape was completed and proven by the actual 

physical penetration of M.S.’s vagina. However, the gross sexual imposition 

count also required that the touching was done with intent to abuse, 

humiliate, harass, degrade or arouse or gratify the sexual desire of any 
Jackson App. No. 15CA1 41

person. We find evidence supports the inference that Appellant’s acts were 

committed with a separate animus. 

{¶100} In State v. Kuritar, 2nd Dist. Montgomery No. 24875, 2012-

Ohio-3849, the defendant was convicted of sexual imposition after he and 

another male spent the night partying with two unmarried adult females in 

an apartment. Kuritar argued on appeal that the evidence did not support the 

finding that he knew his conduct was offensive. However, the appellate 

court noted at ¶ 28: 

“The venue, and the drinking games, could have been 

appropriate to flirtation leading up to sexual activity. But there 

is no indication in this record that any flirtation occurred, or 

that anything occurred that would have led Kuritar to conclude 

that his touching the breast of a sleeping woman, whom he had 

just met that night, and with no history of expressed sexual 

interest between them, would be less than offensive.” 

{¶101} Similarly, we find there can be no reasonable inference that 

six-year-old M.S., who was taken by a stranger under false pretenses from 

her home, removed to a dark cemetery, and initially struck in the face and 

eye and told to “shut up” before she was touched and raped, would find 

Appellant’s touching of her genitalia to be anything but abusive, 

humiliating, harassing, and degrading. 

{¶102} Furthermore, gross sexual imposition may be proven by 

evidence of purpose to arouse or gratify the sexual desire of any person. The 
Jackson App. No. 15CA1 42

trier of fact may infer a purpose of sexual arousal or gratification from the 

type, nature, and circumstances of the contact, among other relevant factors.

State v. Barrie, 10th Dist. Franklin No. 15AP-848, 2016-Ohio-5640, ¶ 18.

State v. Crosky, 10th Dist. Franklin No. 06AP–655, 2008-Ohio-145, 2008 

WL 169346, ¶ 47. We find it is also reasonable to infer that under the 

circumstances, Appellant acted with a purpose to sexually arouse or gratify 

himself. 

{¶103} Furthermore, the acts of rape and gross sexual imposition also 

resulted in separate and identifiable harms. Jamie Myers observed a 

laceration, bruising, and active bleeding in M.S.’s vaginal area – obvious 

serious physical harm. And, it was also obvious to the first responders and 

medical providers that M.S. was emotional and tearful, and would have been 

evident to the jurors when M.S. became emotional during her testimony. Dr. 

Zoran Naumovski opined to a reasonable degree of medical certainty that 

M.S. had also been emotionally traumatized. We find Appellant’s crimes 

resulted in M.S. suffering separate and identifiable physical and 

psychological harms. Because the resulting harms are different in nature, 

these two offenses are “of dissimilar import,” i.e. “they are not alike in their 

significance and their resulting harm.” Ruff at 21; Mullins, supra, at 20. We 

find the trial court correctly rejected merger of these offenses. 
Jackson App. No. 15CA1 43

2. Are Appellant’s convictions for kidnapping and for abduction allied 

offenses of similar import? 

{¶104} Here, the trial court found as follows: 

“The Defendant’s action of taking the victim from her home 

constituted the kidnapping. The Defendant’s conduct of (sic.) 

her to the cemetery where he restrained her liberty by threat of 

undo circumstances that created a risk of physical harm. There 

are separate harms involved in the Defendant’s actions. One 

harm is created by removing the victim from her home. A 

second harm occurred when the Defendant restrained the 

victim’s liberty at the cemetery. The Court also finds that the 

kidnapping and abduction were committed separately. The 

kidnapping was committed when the Defendant took the victim 

from her home. The abduction took place when the Defendant 

restrained her liberty at the cemetery. These acts were 

committed separately.” 

{¶105} Appellant contends the purpose and harm involved in 

kidnapping and abduction is not separate and identifiable, nor was the harm 

distinguished. As such, the kidnapping and abduction counts should be 

merged as allied offenses of similar import for purposes of sentencing. In 

response, the State argues the initial kidnapping occurred when Appellant 

lured M.S. from her home, and that this act was significantly independent 

from the abduction which occurred when he restrained her in the cemetery. 

Further, the State contends the harm created by the acts was separate and 

distinct. Again, we agree with the trial court’s conclusion that the 

kidnapping and abduction offenses do not merge, nor would the kidnapping 

and rape offenses merge. 
Jackson App. No. 15CA1 44

{¶106} Again, examining the crimes at issue, kidnapping requires 

proof that a victim was removed by force, threat, or deception, from the 

place where the person is found, or the victim’s liberty was restrained. 

Abduction requires proof that the victim’s liberty was restrained by force or 

threat, and under circumstances that created a risk of physical harm or 

placed the victim in fear. Appellant kidnapped M.S. by deceiving and 

removing her from her home. M.S. testified she got into the perpetrator’s 

car because he offered to give her a piece of candy. 

{¶107} It does not appear that Appellant restrained M.S. by force or 

threat to kidnap her, although one could argue that once she, a six-year-old 

child, was in Appellant’s car, she was there by force as she would be unable 

to drive herself or remove herself from the vehicle. However, we find 

Appellant’s conduct in abducting M.S. was separate and distinct crime. 

Once Appellant and M.S. arrived at the cemetery, the evidence supports the 

inference that she was restrained by force or threat. 

{¶108} M.S. testified the perpetrator took her to a place with trees 

and grass, hit her in the eye, and told her to shut up. Then he raped her. 

Jamie Myers testified M.S.’s face was bruised and swollen, she had broken 

blood vessels under the skin of her neck, and bruises on her back and legs. 

Whether these injuries occurred solely because of Appellant’s beating her or 
Jackson App. No. 15CA1 45

because she fought back, it is reasonable to infer that her liberty was 

restrained by use of force. 

{¶109} Appellant’s act of kidnapping was completed by deceiving 

her into leaving with him and transporting her from home. However, he 

continued on to the cemetery where he restrained her by force or threat, thus 

also committing the crime of abduction. We agree with the trial court’s 

finding that separate crimes were committed. As we observed in State v. 

Smith, 4th Dist. Scioto No. 15CA3686, 2016-Ohio-5062, ¶115, the conduct, 

animus, and import of alleged allied offenses must all be considered. If one 

of the Ruff questions is answered affirmatively, then separate convictions are 

permitted. Id. 

{¶110} Appellant further contends if the kidnapping is based on 

restraint of liberty, it would arguably merge with the rape conviction. 

Appellant urges correction of the alleged error by merging kidnapping with 

rape. We also disagree with this conclusion. 

{¶111} M.S.’s kidnapping occurred by deception. However, we find 

the analysis in State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio5138, further illustrative of the significance of movement or transport of a 

victim. There, the appellate court considered whether Echols’ convictions 

for rape and kidnapping of two separate victims in two separate incidents in 
Jackson App. No. 15CA1 46

1994 and 1999 should have been merged as allied offenses of similar import 

for purposes of sentencing. In one instance, as to the first victim, K.C., the 

court determined that the offenses should have been merged. Id. at 39. 

However, in the case of the second victim, M.M., the appellate court noted: 

“She was abducted from the bus stop. Appellant forced her to 

get into his vehicle, hit her with a brick once in the car, and he 

drove her away from the area. The trial court's finding that this 

movement was significant and encompassed an increased risk 

of harm is supported. The asportation of M.M. constituted a 

separate crime for which appellant may be separately 

punished.” Id. at 40. 

{¶112} M.S. was kidnapped by deception and transported a 

significant distance to the cemetery where Appellant thereafter committed 

the rape. These constitute separate crimes for which Appellant may be 

separately punished. As such, the trial court did not err by failing to merge 

the offenses of kidnapping and rape under the facts presented herein. 

{¶113} For the foregoing reasons, we find no merit to Appellant’s 

second assignment of error. As such, both assignments of error are 

overruled and the judgment of the trial court is affirmed. 

 JUDGMENT AFFIRMED. 
Jackson App. No. 15CA1 47

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be 

assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Jackson County Common Pleas Court to carry this judgment into 

execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

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

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error I; 

 Concurs in Judgment Only as to Assignment of Error II. 

For the Court, 

 BY: ______________________________ 

 Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this 

document constitutes a final judgment entry and the time period for 

further appeal commences from the date of filing with the clerk.