[Cite as State v. Miller, 2013-Ohio-1185.]

[Vacated Opinion. Please see 2013-Ohio-1651.] 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98574

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JESSE MILLER, JR.

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 

FOR RESENTENCING

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-560247 

BEFORE: Celebrezze, P.J., Rocco, J., and McCormack, J. 
RELEASED AND JOURNALIZED: March 28, 2013 

ATTORNEY FOR APPELLANT

Mark DeFranco 

Mark A. DeFranco Law Offices 

55 Public Square 

Suite 1600 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Nicole Ellis 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Appellant, Jesse Miller, Jr., appeals his convictions stemming from the 

assault and robbery of a female. He argues that his convictions are unsupported by 

sufficient evidence, are against the manifest weight of the evidence, that he was 

compelled to wear his jail clothes during trial, and that the state committed prosecutorial 

misconduct during closing arguments by vouching for the credibility of a witness and 

asking the jury to imagine themselves in the victim’s position. After a thorough review 

of the record and law, we affirm appellant’s convictions, but remand the case for 

resentencing so the court can properly merge allied offenses. 

I. Factual and Procedural History 

{¶2} Elizabeth Williams testified that on May 3, 2011, she was walking down 

Coarth Avenue in Cleveland, Ohio, toward a friend’s house. She heard someone riding a 

bike up to her from behind and heard the cyclist shout at her, “I thought I told you not to 

be around here no more. I don’t want you around here.” She recognized the voice as 

that of “Mookie” or “Mook,” someone she had issues with in the past. She testified that 

at an earlier point in time, “Mook” had tried to grope her and she told him to leave her 

alone. He responded that he better not see her in the neighborhood again. 

{¶3} Williams testified that the assailant rode the bike up to her, then got off of it, 

shouting at her. He put his left forearm around her neck and with his right hand, reached 
into her pockets and removed $47, shouting at her all the while. She testified that, after 

taking the money from her, the assailant retrieved a gun from behind him in his waistband 

and hit her in the face with the grip. She fell to the ground unconscious. She woke a 

short time later and saw him peddling away, and then he entered a house just down the 

street. 

{¶4} Williams got up shaken and bloody and began banging on the doors of homes 

nearby for help. Odie Cooper answered his door to find Williams dripping blood all over 

his porch. He ushered her inside and gave her a towel and some ice. He also called 

911. 

{¶5} Police and paramedics arrived a short time later, and Williams was 

transported to the hospital. The cut just above her left eye was treated with 11 stitches — 

five applied inside the wound to deal with a piece of flesh that was removed by the blow, 

and six applied to her skin to properly close the wound. A CT scan also revealed 

fractured bones in her face. 

{¶6} Officer Kevin Walker of the Cleveland police department was first to arrive. 

He found a badly bleeding and hysterical Williams. She told him that “Mook” or 

“Mookie” had hit her and had taken her money. Officer Walker generated a report that 

indicated Williams did not allege that a gun was used, but that she was hit with an 

unknown hard object. 

{¶7} Detective John Kraynik, also with the Cleveland police, was assigned to 

investigate the incident. He initially had a phone conversation with Williams where he 
learned that the individual who assaulted her went by the name of “Mook” or “Mookie.” 

Det. Kraynik also reviewed a supplemental report that indicated the assailant was possibly 

known as “Kaliffe.” 

{¶8} Det. Kraynik ran those aliases through a computer database to attempt to 

determine the assailant’s real identity. The database contained a match to appellant. 

Det. Kraynik constructed a photo lineup using six photographs. He arranged for Williams 

to view the photographs with a police officer who was unfamiliar with the case and did 

not know the identity of the suspect. Williams picked appellant’s photograph from this 

array. 

{¶9} Appellant was eventually arrested and charged with two counts of 

kidnapping, two counts of aggravated robbery, two count of felonious assault, and one 

count of having a weapon while under disability. The first six counts also included oneand three-year firearm specifications, repeat violent offender specifications, and notices 

of prior conviction. A jury trial commenced on May 29, 2012, on the counts of 

kidnapping, aggravated robbery, and felonious assault. The weapon while under disability 

charge, repeat violent offender specification, and prior conviction specification were tried 

to the bench. The three-day trial concluded in guilty verdicts on two first-degree felony 

counts of kidnapping (R.C. 2905.01(A)(2) and (A)(3)), one first-degree felony count of 

aggravated robbery (R.C. 2911.01(A)(3)), and one second-degree felony count of 

felonious assault (R.C. 2903.11(A)(1)). The jury found appellant did not possess a gun, 

and therefore, found appellant not guilty of all gun specifications. The trial court found 
appellant guilty of the notice of prior conviction specification, but not guilty of the 

remaining matters tried to the bench. 

{¶10} At sentencing, on June 6, 2012, appellant raised the merger of allied 

offenses, arguing that all the offenses should merge. The state agreed that the 

kidnapping, aggravated robbery, and felonious assault charges should merge. The court, 

in pronouncing sentence, indicated that the kidnapping counts merged with each other 

and with the aggravated robbery and felonious assault counts. The state elected to 

proceed with sentencing on the first kidnapping count. After reviewing appellant’s 

lengthy criminal history, the court ordered him to serve a ten-year prison sentence for this 

count, but also imposed a ten-year sentence on the merged aggravated robbery count and 

an eight-year sentence on the merged felonious assault count. The court ordered all 

prison terms to be served concurrently to each other. The court waived fines and costs 

and informed appellant of postrelease control. 

{¶11} Appellant then perfected a timely appeal raising four assignments of error: 

I. The trial court erred when it denied the motion for acquittal under 

Crim.R. 29 because the state failed to present sufficient evidence of serious 

physical harm beyond a reasonable doubt. 

II. The state committed prosecutorial misconduct by bolstering the 

credibility of the victim and asking the jury to place themselves in the 

victim’s shoes during closing arguments. 

III. The trial court denied appellant the right to a fair trial by compelling 

him to wear his jail clothing and by failing to address the jury or give a 

limiting instruction. 

IV. Appellant’s convictions are against the manifest weight of the 

evidence. 
II. Law and Analysis 

A. Allied Offenses 

{¶12} Appellant first argues that his convictions for kidnapping, aggravated 

robbery, and felonious assault are unsupported because the state failed to offer evidence 

of serious physical harm. Although not raised by the parties, it must be noted that the 

charges of aggravated robbery and felonious assault merged with the kidnapping charge 

for sentencing purposes and were inappropriately assigned sentences. When merging 

allied offenses, the trial court must consider them as if they were a single offense. 

Therefore, a sentence may only be imposed on the offenses that survive merger. “When a 

defendant has been found guilty of offenses that are allied offenses, * * * a trial court 

must merge the crimes into a single conviction and impose a sentence that is appropriate 

for the offense chosen for sentencing.” State v. Damron, 129 Ohio St.3d 86, 

2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. “[F]or purposes of R.C. 2941.25, a ‘conviction’ 

is the combination of a guilt determination and a sentence or penalty.” Id. “Because 

there may be only one conviction under R.C. 2941.25(A), ‘[a] defendant may be indicted 

and tried for allied offenses of similar import, but may be sentenced on only one of the 

allied offenses.’” State v. Bowman, 8th Dist. No. 97165, 2012-Ohio-1355, ¶ 29, quoting 

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 17. 

{¶13} Here, the trial court mistakenly imposed sentence on offenses the court 

indicated merged. Therefore, the trial court erred, and the case must be remanded for 

resentencing where the trial court should impose a sentence on only those counts that 
survive after proper merger. Accordingly, only the conviction for kidnapping will be 

addressed in appellant’s first assignment of error. State v. Hoang, 9th Dist. No. 

09CA0061-M, 2010-Ohio-6054. See also Bowman, 2012-Ohio-1355 (this court 

addressed only the kidnapping conviction in a manifest weight challenge where the 

defendant was found guilty of kidnapping and felonious assault, but the trial court merged 

the two offenses for sentencing). 

B. Sufficiency 

{¶14} Under Crim.R. 29, a trial court “shall not order an entry of judgment of 

acquittal if the evidence is such that reasonable minds can reach different conclusions as 

to whether each material element of a crime has been proved beyond a reasonable doubt.” 

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), at the syllabus. “A 

motion for judgment of acquittal under Crim.R. 29(A) should be granted only where 

reasonable minds could not fail to find reasonable doubt.” State v. Apanovitch, 33 Ohio 

St.3d 19, 23, 514 N.E.2d 394 (1987). Thus, the test an appellate court must apply in 

reviewing a challenge based on a denial of a motion for acquittal is the same as a 

challenge based on the sufficiency of the evidence to support a conviction. 

{¶15} The Ohio Supreme Court has set forth the test an appellate court should 

apply when reviewing the sufficiency of the evidence supporting a conviction: 

[T]he relevant inquiry on appeal is whether any reasonable trier of fact 

could have found the defendant guilty beyond a reasonable doubt. In other 

words, an appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence 

admitted at trial to determine whether such evidence, if believed, would 
convince the average mind of the defendant’s guilt beyond a reasonable 

doubt. 

 

State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), citing State v. Eley, 56 

Ohio St.2d 169, 383 N.E.2d 132 (1978). 

{¶16} R.C. 2905.01(A)(2) defines kidnapping, as it relates to this case, as the 

restraint of one’s liberty of movement by force, threat, or deception to facilitate the 

commission of any felony. The state alleged at trial that appellant did this to Williams in 

order to commit the felony offenses of aggravated robbery or felonious assault. Both of 

those predicate felonies require a showing of serious physical harm. R.C. 2911.01(A)(3); 

R.C. 2903.11(A)(1). Appellant claims the record lacks evidence of serious physical 

harm to the victim. This court disagrees. 

{¶17} Serious physical harm is defined to mean any of the following: 

(a) Any mental illness or condition of such gravity as would normally 

require hospitalization or prolonged psychiatric treatment; 

(b) Any physical harm that carries a substantial risk of death; 

(c) Any physical harm that involves some permanent incapacity, whether 

partial or total, or that involves some temporary, substantial incapacity; 

(d) Any physical harm that involves some permanent disfigurement or that 

involves some temporary, serious disfigurement; 

(e) Any physical harm that involves acute pain of such duration as to result 

in substantial suffering or that involves any degree of prolonged or 

intractable pain. 

R.C. 2901.01(A)(5). 
{¶18} “The degree of harm that rises to the level of ‘serious’ physical harm is not 

an exact science, particularly when the definition includes such terms as ‘substantial,’ 

‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Irwin, 7th Dist. No. 06MA20, 

2007-Ohio-4996, ¶ 37. Where a victim’s injuries included “two black eyes, a broken 

nose, bruising and bleeding on her right temple, deep bruising to her upper body, and a 

mild concussion which caused vomiting and headaches[,]” the Second District found 

sufficient evidence of serious physical harm. State v. Bootes, 2d Dist. No. 23712, 

2011-Ohio-874, ¶ 20. 

{¶19} This court has also found sufficient evidence of serious physical harm in 

cases with similar injuries. State v. Melendez, 8th Dist. No. 97175, 2012-Ohio-2385, ¶ 

14. There, this court affirmed its position that “when a victim’s injuries are serious 

enough to cause the victim to seek medical treatment, it may be reasonably inferred that 

the force exerted on the victim caused serious physical harm.” Id., citing State v. 

Wyland, 8th Dist. No. 94463, 2011-Ohio-455, ¶ 32; State v. Walker, 8th Dist. No. 52391, 

1987 Ohio App. LEXIS 7570 (June 18, 1987). 

{¶20} Williams testified that she was knocked unconscious by a blow to her head 

inflicted by appellant. She testified that she was bleeding significantly from a laceration 

on her face. Cooper testified appellant was bleeding significantly from her face and that 

blood soaked through the towel he gave her. Officer Walker testified that Williams was 

covered with blood when he arrived on the scene. Williams testified that she received a 

number of stitches, including stitches inside the wound because the blow to her head had 
removed a chunk of flesh from her face. Her medical records indicate she received a 

total of 11 stitches and followed up with a plastic surgeon, although further treatment was 

deemed unnecessary. Williams also has a scar, which she pointed out to the jury while 

testifying. 

{¶21} Appellant points to the testimony of Officer Jonathan Schafer of the 

Cleveland police department as evidence that Williams did not suffer serious physical 

harm. However, Officer Schafer, who interviewed Williams the day after the incident, 

could not recall her injuries. He did not testify that Williams had no injuries, as appellant 

intimates. 

{¶22} Appellant argues this case is similar to State v. Addison, 8th Dist. No. 

96514, 2012-Ohio-260. There, this court found the evidence presented at trial did not 

sufficiently demonstrate serious physical harm. Id. at ¶ 26. However, the result in 

Addison was due to the fact that the victim, “Anthony Brown[,] failed to testify against 

Addison and, because Anthony refused medical treatment at the hospital[.]” Id. at ¶ 28. 

In that case, the only evidence in the record of serious physical harm was photographs 

showing the victim and the testimony of the victim’s brother. 

There was no evidence that Anthony suffered prolonged intractable pain, 

that he had any permanent disfigurement, or that the injury caused him 

substantial temporary incapacity. Anthony’s refusal of medical treatment 

deprives this court of any medical documentation of Anthony’s alleged 

injuries. 

Id. at ¶ 29-30. 
{¶23} The present case is distinguishable because Williams testified that she was 

knocked unconscious by a blow to her head from a gun wielded by appellant. This is a 

temporary substantial incapacity. She further testified that she was taken to the hospital 

by ambulance where she received treatment for skull fractures and a cut to her face that 

required several stitches — a laceration from which she still has a scar — a permanent 

disfigurement. Serious physical harm has been established in this record. 

{¶24} Appellant’s conviction for kidnapping is supported by sufficient evidence. 

The rest of appellant’s sufficiency arguments hinge on a lack of serious physical harm. 

Having found sufficient evidence of serious physical harm in the record, appellant’s 

remaining arguments are likewise overruled. 

C. Manifest Weight 

{¶25} Appellant also claims his conviction for kidnapping is against the manifest 

weight of the evidence. He points to alleged inconsistencies in Williams’s testimony. 

This argument 

addresses the evidence’s effect of inducing belief. [State v. Thompkins, 78 

Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541]. In other words, 

a reviewing court asks whose evidence is more persuasive — the state’s or 

the defendant’s? We went on to hold that although there may be sufficient 

evidence to support a judgment, it could nevertheless be against the 

manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a 

court of appeals reverses a judgment of a trial court on the basis that the 

verdict is against the weight of the evidence, the appellate court sits as a 

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the 

conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida 

(1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. 
{¶26} Williams certainly had credibility issues. She acknowledged that she 

currently resided in prison on drug charges at the time of her testimony. Her prior 

criminal convictions were also used during direct and cross-examination. However, she 

never wavered in her description of the events of May 3, 2011, and the jury must have 

found that significant. 

{¶27} Williams testified that she was assaulted that day by the person she knew as 

“Mook” or “Mookie” — a person she had known for a number of years. She picked 

appellant out of a photo array after those aliases were matched to appellant. Cooper 

witnessed the injuries to Williams shortly after they were inflicted and corroborated their 

severity. During the 911 call placed by Cooper, Williams can be heard in the 

background proclaiming “Mookie” was the individual that assaulted her. 

{¶28} The record in this case does not clearly demonstrate that the jury lost its way 

in convicting appellant of kidnapping. Therefore, appellant’s fourth assignment of error 

is overruled. 

D. Prosecutorial Misconduct 

{¶29} Appellant next claims that, during closing arguments, the state committed 

prosecutorial misconduct by vouching for the credibility of Williams and by asking the 

jury to place itself in her situation. 

“The test regarding prosecutorial misconduct in closing arguments is 

whether the remarks were improper and, if so, whether they prejudicially 

affected substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d 

13, 14, 470 N.E.2d 883 (1984). Prosecutors are granted wide latitude in 

closing argument, and the effect of any conduct of the prosecutor during 

closing argument must be considered in light of the entire case to determine 
whether the accused was denied a fair trial. State v. Maurer, 15 Ohio St.3d 

239, 266, 269, 473 N.E.2d 768 (1984). The touchstone of the analysis “is 

the fairness of the trial, not the culpability of the prosecutor.” Smith v. 

Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). 

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149. 

{¶30} However, no objection was raised during these comments, so this court must 

determine if the state’s comments constitute plain error. 

{¶31} To constitute plain error, the error must be obvious on the record, palpable, 

and fundamental, so that it should have been apparent to the trial court without objection. 

See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995). 

Moreover, plain error does not exist unless the appellant establishes that the outcome of 

the trial clearly would have been different but for the trial court’s allegedly improper 

actions. State v. Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043. 

Notice of plain error is to be taken with utmost caution, under exceptional circumstances, 

and only to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 

83, 1995-Ohio-171, 656 N.E.2d 643. 

{¶32} Here, the state went through Williams’s testimony and opined that it found 

her story credible. The state also asked the jury to imagine themselves in Williams’s 

position to explain why she avoided contact with Det. Kraynik for two months during the 

investigation of the incident. These issues must have been apparent to the trial court 

because immediately following the state’s initial closing arguments, the court gave the 

following instructions: 
Ladies and gentlemen, before [appellant] gives his closing argument, I have 

two instructions for you just briefly. One is which [sic] the Prosecutor and 

the Court do not vouch for the credibility of witnesses, all right? So 

credibility is your province solely, all right? 

So what anybody else thinks at this point does not matter. It is up to you. 

Does everybody understand that? 

In addition to that, ladies and gentlemen, I do not want you to put yourself 

in the position of the victim in this case, or anybody else. 

It is your decision to review the evidence and decide credibility and your 

perspective on this evidence, but I do not want you to put yourself in the 

position of the victim. Do you understand? 

{¶33} In light of the trial court’s instruction, which the jury is presumed to follow, 

it cannot be said that appellant’s ability to receive a fair trial was compromised as he 

claims. See State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623. 

The instruction given by the trial court was clear and specifically addressed the arguments 

appellant now makes on appeal. With only a bald assertion that the state’s comments 

prejudiced appellant, and in light of the curative instruction given by the trial court, 

appellant has not demonstrated that plain error occurred that would necessitate a new 

trial. Therefore, appellant’s second assignment of error is overruled. 

E. Clothing of the Accused 

{¶34} In his third assignment of error, appellant claims that he did not receive a 

fair trial because he was compelled to wear his jail uniform rather than street clothes 

during trial. 
{¶35} There is no basis in the record to support this assigned error. The trial court 

put forth an order the day before trial that appellant was to be dressed in normal clothes 

for trial. Appellant refused to change his clothes and was satisfied with his appearance. 

The court offered to continue trial so that appellant could change, but appellant again 

refused. There is no appealable issue here. Accordingly, this assignment of error is 

overruled. 

III. Conclusion 

{¶36} Appellant’s conviction for kidnapping is supported by sufficient evidence 

and is not against the manifest weight of the evidence. The alleged instances of 

prosecutorial misconduct during closing arguments do not rise to the level of plain error, 

especially in light of the limiting instruction given by the trial court after the prosecutor’s 

statements. Also, appellant’s informed decision to remain in his jail uniform during trial 

cannot seriously be argued here where the trial court counseled appellant on the 

importance of wearing street clothes and allowed appellant time to change clothes. 

When appellant refused such an offer, he invited any resultant harm. However, the trial 

court erred when imposing sentence on offenses that merged. The court must remove 

those sentences and only impose sentence on those counts that survive after merger. 

{¶37} This cause is affirmed in part, reversed in part, and remanded to the lower 

court for further proceedings consistent with this opinion. 

It is ordered that appellant and appellee share the 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. The appellant’s conviction having 

been affirmed, any bail pending appeal is terminated. 

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

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

KENNETH A. ROCCO, J., and 

TIM MCCORMACK, J., CONCUR