[Cite as State v. Winchester, 2013-Ohio-4683.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

JAMES J. WINCHESTER 

 Appellant 

C.A. No. 26652 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 12 04 0958 

DECISION AND JOURNAL ENTRY

Dated: October 23, 2013 

 

MOORE, Presiding Judge. 

{¶1} Defendant, James J. Winchester, appeals from the judgment of the Summit 

County Court of Common Pleas. This Court affirms. 

I. 

{¶2} On May 18, 2012, the Summit County Grand Jury indicted Mr. Winchester on 

one count of rape in violation of R.C. 2907.02(A)(2) and one count of kidnapping in violation of 

R.C. 2905.01(A)(2)/(3)/(4). At his arraignment, Mr. Winchester pleaded not guilty, and the case 

proceeded to a jury trial. The jury found Mr. Winchester guilty on both counts. The trial court 

sentenced him to a total of eighteen years of incarceration. Mr. Winchester timely filed a notice 

of appeal and raises four assignments of error for our review. We have re-ordered the 

assignments of error to facilitate our discussion. 
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II. 

ASSIGNMENT OF ERROR IV

[MR. WINCHESTER]’S CONVICTION IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND 

FOURTEENTH AM[E]NDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE, SECTIONS TEN AND SIXTEEN OF 

THE OHIO CONSTITUTION. 

{¶3} In his fourth assignment of error, Mr. Winchester argues that his rape and 

kidnapping convictions are against the manifest weight of the evidence. We disagree. 

{¶4} When a defendant asserts that his conviction is against the manifest weight of the 

evidence: 

[A]n appellate court must review the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of witnesses and determine 

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered. 

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). In making this determination, this 

Court is mindful that “[e]valuating evidence and assessing credibility are primarily for the trier 

of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v. 

Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio 

App.3d 153, 154 (12th Dist.1987). 

{¶5} Here, Mr. Winchester was convicted of rape in violation of R.C. 2907.02(A)(2) 

and kidnapping in violation of R.C. 2905.01(A)(2)/(3)/(4). R.C. 2907.02(A)(2) provides that 

“[n]o person shall engage in sexual conduct with another when the offender purposely compels 

the other person to submit by force or threat of force.” R.C. 2901.01(A) defines “force” as “any 

violence, compulsion or constraint physically exerted by any means upon or against a person or 

thing.” 
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{¶6} R.C. 2905.01(A) provides in relevant part: 

(A) No person, by force, threat, or deception, * * * shall remove another from the 

place where the other person is found or restrain the liberty of the other person, 

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; 

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

Code, with the victim against the victim’s will[.] 

{¶7} Here, the charges against Mr. Winchester stem from the alleged kidnapping and 

rape of a then seventeen-year-old girl, L.L. On appeal, Mr. Winchester maintains that the weight 

of the evidence does not support that he kidnapped and raped L.L., but, instead it demonstrates 

that he and L.L. engaged in consensual sexual conduct on the night at issue. We will therefore 

limit our discussion of the evidence to that which pertains to the issues of kidnapping and 

consent as a defense to rape. 

{¶8} As part of its case-in-chief, the State presented the testimony of L.L., L.L.’s 

grandmother, a sexual assault nurse examiner, officers from the Akron Police Department, and 

Mr. Winchester’s former girlfriend, Precious Allen. L.L. testified that, in the late hours of July 

17, 2012, she was walking along Copley Road in Akron, heading home from a friend’s house. 

While she was walking, two men, whom she did not know but had previously seen in the 

neighborhood, pulled up next to her in a sports utility vehicle and told her to get in. She said no, 

and she kept walking. However, the car then stopped, and a man wearing a square earring and 

“gold teeth,” whom she later identified as Mr. Winchester, got out of the car and told her to get 

in. She complied because she was scared. They then drove to a house, where the passenger got 

out of the car. After the passenger went into the house, Mr. Winchester told L.L. to get out of 
4 

 

the backseat of the car. As they stood outside of the car, Mr. Winchester began touching her 

thighs underneath her dress. He then told her to get into the front passenger seat. L.L. complied 

because she was still scared. Mr. Winchester then drove down a street near Buchtel High 

School. He began touching her again. Mr. Winchester stopped the car, got out, walked to the 

passenger side, and opened the door and tried to kiss her. She bit his lip. He then pulled her out 

of the car, and they began wrestling. As the struggle ensued, L.L. found herself at the front of 

the car, and Mr. Winchester began banging her head on the car by forcing her head down while 

holding the back of her neck. She told him to stop, but every time she did, he would bang her 

head on the car. At this point, L.L.’s back was facing Mr. Winchester, and she was facing the 

front of the car. He then put his penis in her vagina. She told him to stop, and he refused. She 

eventually stopped resisting because every time she struggled, he hit her head against the car. 

Thereafter, she got back in the truck, and Mr. Winchester drove her to her grandmother’s home. 

She went in the bathroom of grandmother’s home, where she was crying and shaking. At some 

point, her grandmother came in, and she relayed to her grandmother what had happened. 

{¶9} On cross-examination, L.L. confirmed that she owns a cell phone; however, she 

could not recall if she had it in her possession on the night at issue. L.L. further indicated that 

she would not normally walk home, but it was around midnight, and she was supposed to have 

already been home. L.L. maintained that she got in the car when Mr. Winchester told her to 

because she was scared. He did not throw her in the car, he did not threaten her, and she saw no 

weapon in his possession. After they dropped off the passenger, L.L. got out of the backseat 

through the backseat door, opened the front passenger seat door, and got back into the car. When 

they stopped the second time, which was at a house on Packard Drive, Mr. Winchester pulled her 

out of the car by her wrists, and she tried to run, but she could not get away. L.L. further 
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acknowledged that, although she had seen Mr. Winchester previous to the attack, she did not 

know him or his sister, he did not father her child who was born previous to the attack in 

December of 2010, and she had never been to his home. After the attack, she asked him to take 

her home, and she showed him which way to go until they were almost there, at which point she 

told him to stop, and she got out of the car and walked the rest of the way. L.L. recalled that she 

had bruises on her neck and right upper arm as a result of the attack, but she did not have any 

bruising on her face resulting from Mr. Winchester slamming her head into the car. 

{¶10} L.L.’s grandmother testified that, during the night at issue, she awoke upon 

hearing L.L. crying. She found L.L. curled in the fetal position on the bathroom floor. After 

L.L. had explained the attack, her grandmother called the police and the paramedics. L.L. was 

then taken to the hospital, where she was given a sexual assault exam. On cross-examination, 

L.L.’s grandmother indicated that she had never seen Mr. Winchester or heard his name prior to 

the instant proceedings. 

{¶11} Jennifer Diamond, a sexual assault nurse examiner, testified that she examined 

L.L. at the hospital. Ms. Diamond obtained a narrative from L.L., who was shaking and crying. 

L.L. told the nurse that she was walking home from a friend’s house when two men approached 

her in a car and asked if she needed a ride. L.L. said she did not, but then “one of them jumped 

out and threw her into the car.” The men then drove to a home to drop off the man in the 

passenger seat, “[a]nd at that point [L.L.] was begging for them to let her go. But after the 

passenger got out of the car * * * the driver told her to get into the passenger’s seat[.]” He then 

began to touch her all over her body, and she asked him to stop. He responded that he was going 

to take her somewhere “where no one could see.” He drove her to a house near Buchtel High 

School and parked in the driveway. He then “threw” her out of the car and “pushed” her up 
6 

 

against the car. She was fighting and screaming to get away from him. He tried to kick her and 

was covering her mouth. He then “grabbed her in the back of her neck and pushed her * * * face 

first against the front of the car.” He pinned her wrists behind her back and put his penis and 

fingers into her vagina. He then drove her home, called her a “bitch,” and told her to get out. 

L.L. indicated that she did not know her attacker, but she had seen him before. 

{¶12} After taking L.L.’s narrative, Ms. Diamond performed a physical exam on L.L. 

and collected samples for a sexual assault kit.1

 Ms. Diamond noted abrasions on L.L.’s sternum 

and breast. She also noted multiple reddened contusions on her left and right wrists and 

abrasions on her labia. Ms. Diamond photographed the injuries, and these pictures were 

submitted into evidence. 

{¶13} On cross-examination, Ms. Diamond indicated that the injuries she observed were 

consistent with the history that L.L. provided. However, the abrasions to her vagina also could 

have been consistent with consensual sex. Ms. Diamond did not recall or document any injuries 

to L.L.’s head or face. 

{¶14} Officer Mathew Hackathorn testified that he responded to the hospital in response 

to the report of rape. L.L. informed the officer that she did not know who her attacker was, but 

gave a description of the man to the officer. Her description included that the man was wearing 

a square earring and a blue “do-rag.” The officer then notified the detective bureau. On cross- 

 1

 Forensic scientists from the Ohio Bureau of Criminal Investigation testified that they 

received the samples collected from the sexual assault kit. These samples were positive for 

seminal fluid, and contained DNA which was later matched to Mr. Winchester. Mr. Winchester 

does not dispute these findings. 
7 

 

examination, Officer Hackathorn indicated that he believed that L.L. had said that, previous to 

this incident, she had seen her attacker on the west side of Akron, but she did not know who he 

was. 

{¶15} Detective Crystal Bowen Carter of the Akron Police Department testified that she 

received the police report alleging that L.L. had been raped, and she also received a report from 

the hospital on July 18, 2011. As part of her investigation, she spoke with L.L. that day. When 

L.L. arrived at the police station, the detective could see injuries on L.L.’s upper arms, which 

L.L. indicated she received during the attack. L.L. explained to the detective that she did not 

know the identity of her attacker, but gave the officer a physical description of the man and a 

description of the car. The description included that he had a “square earring, a do-rag, [and] a 

grill[.]” Detective Bowen Carter then placed a “be on the lookout” alert (“BOLO”) for a man or 

vehicle matching the description. However, when nothing came in as a result of the BOLO, 

Detective Bowen Carter sent the sexual assault kit to BCI for testing. She later learned that the 

DNA collected in the samples in the kit matched the DNA of Mr. Winchester. 

{¶16} On cross-examination, Detective Bowen Carter maintained that she did not 

photograph the injuries that she observed to L.L.’s arms, because she believed that the hospital 

had already photographed the injuries. Detective Bowen Carter further acknowledged that, in 

L.L.’s statement to her, she reported that the driver of the car got out of the car, “grabbed her 

right wrist,” and demanded that she get in the car. L.L. reported that they then dropped off the 

male passenger at a house on Thornton Street, at which point her attacker pulled her out of the 

car and pushed her against it. However, the lights in the passenger’s house came on, and her 

attacker said that “he wasn’t going to do it right there because his friend was watching him.” 
8 

 

The detective confirmed that she did not ask L.L. why she did not attempt to run while she was 

out of the vehicle. 

{¶17} Precious Allen testified that she has a child with Mr. Winchester. In July of 2011, 

Mr. Winchester was residing with her. She recalled that, one night in July, at approximately 2:00 

a.m., he came home with his t-shirt ripped and his rosary necklace broken. At that time, he was 

wearing square earrings and a gold “grill,” and he had a “do-rag” on his head. Ms. Allen asked 

him what had happened, but he would not tell her. On April 12, 2012, Mr. Winchester called her 

from jail and told her that he needed her to say that he was with her on July 17, 2011. 

{¶18} On cross-examination, Ms. Allen acknowledged that she could not remember the 

exact date that Mr. Winchester had come home with his t-shirt ripped and his necklace broken; 

although she did know that it was late at night in July of 2011. Further, she remembered in the 

phone call from Mr. Winchester that he told her to tell the truth. She further acknowledged that 

she was upset with Mr. Winchester due to the difficulties in their relationship. 

{¶19} The defense provided the testimony of Kiana Winchester, Mr. Winchester’s sister. 

Ms. Winchester testified that she knows L.L., and she knew L.L. when she was pregnant. At that 

time, she had come to Ms. Winchester’s house to braid Mr. Winchester’s hair. After L.L. had 

her baby, she came back to Ms. Winchester’s house to again braid Mr. Winchester’s hair. While 

she was there, Ms. Winchester asked if she could see a picture of L.L.’s baby, and she showed 

her a picture on a social media website. On the night of the purported attack, Ms. Winchester 

saw Mr. Winchester pull into their driveway, and she could see a female in the front seat, but she 

could not see her face. On cross-examination, Ms. Winchester acknowledged that her brother 

had sent her a letter while he was incarcerated awaiting trial, but she maintained that she had 

thrown the letter away. 
9 

 

{¶20} In his merit brief, Mr. Winchester argues that his convictions were against the 

manifest weight of the evidence because L.L.’s statements to Ms. Diamond and Detective Bowen 

Carter were inconsistent with each other and inconsistent with the testimony that she provided at 

trial. 

{¶21} Although L.L.’s testimony was at times inconsistent with the accounts of the 

incident when compared to the accounts that other witnesses had recalled her previously 

providing, “[t]he jury is free to believe all, part, or none of the testimony of each witness.” 

Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing State v. 

Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). This is because the jury “is best able to view 

witnesses and observe their demeanor, gestures and voice inflections, and use these observations 

in weighing the credibility of the proffered testimony.” State v. Cook, 9th Dist. Summit No. 

21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th 

Dist.1993). We cannot say the jury’s resolution of the inconsistencies was unreasonable. See 

State v. Peasley, 9th Dist. Summit No. 25062, 2010-Ohio-4333, ¶ 18 (“A conviction is not 

against the manifest weight because the [trier of fact] chose to credit the State’s version of 

events.”). 

{¶22} After reviewing the entire record, weighing the inferences, and examining the 

credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest 

miscarriage of justice in finding Mr. Winchester guilty of rape and kidnapping. Accordingly, 

Mr. Winchester’s fourth assignment of error is overruled. 
10 

 

ASSIGNMENT OF ERROR II

[MR. WINCHESTER] WAS DENIED DUE PROCESS OF LAW, PURSUANT 

TO THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF 

THE OHIO CONSTITUTION, WHEN COUNSEL WAS NOT PERMITTED TO 

QUESTION THE COMPLAINING WITNESS’S MOTIVES IN HIS CLOSING 

ARGUMENT. 

{¶23} In his second assignment of error, Mr. Winchester argues that the trial court erred 

in denying him the opportunity to argue in closing arguments that L.L. fabricated her testimony 

because she feared that criminal charges would be brought against her if she failed to maintain 

her story. We disagree. 

{¶24} “The assessment of whether the permissible bounds of closing argument have 

been exceeded is, in the first instance, a discretionary function to be performed by the trial court. 

Such determination will not be reversed on appeal absent an abuse of discretion.” Pang v. 

Minch, 53 Ohio St.3d 186 (1990), paragraph three of the syllabus. An abuse of discretion 

implies that a trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983) 

{¶25} Here, during closing argument, the following exchange occurred: 

[DEFENSE COUNSEL]: * * * 

[L.L.] has done everything in her power to not have to have this case go forward. 

She is caught. She has no other alternative. If she backs out now they charge her 

with making – 

[PROSECUTOR]: Objection. 

THE COURT: Sustained. 

[DEFENSE COUNSEL]: Why? 

THE COURT: Sustained. 

You may continue. 
11 

 

[DEFENSE COUNSEL]: Okay. 

She’s trapped and has no other options but to go forward with this. She does her 

best not to show up. She does her best to avoid this in hopes that this whole thing 

will just go away. She realizes she is in over her head. 

{¶26} Mr. Winchester maintains that, prior to the State’s objection, defense counsel was 

prepared to indicate that L.L. fabricated her story and then maintained her lie in order to avoid 

criminal prosecution. Mr. Winchester argues that the trial court erred in sustaining the objection 

to this line of argument. In support, he cites to the Fourth District’s holding in State v. Powell, 

177 Ohio App.3d 825, 2008-Ohio-4171 (4th Dist.2008). 

{¶27} In Powell, the defendant was charged with complicity to escape for purportedly 

helping her friend escape the custody of an officer who had just arrested him. Id. at ¶ 1, 3. 

During trial, the court “admitted into evidence most of the officer’s method of maintaining her 

friend’s detention.” Id. at ¶ 43. During closing argument, the trial court prohibited defense 

counsel from arguing that that the “officer’s poor method of or mistakes in detaining her friend 

led to his motive to lie or exaggerate what happened.” Id. at ¶ 17, 43. The defendant was 

convicted, and she appealed. Id. at ¶ 18-19. The Fourth District reversed the conviction and 

remanded the matter, holding, in relevant part: 

[T]he trial court should accord trial counsel wide latitude in closing arguments. 

Trial counsel should advocate and persuade to the limit of his or her ability and 

enthusiasm but cannot misrepresent evidence or go beyond the limits set by the 

trial court. Thus, counsel may freely discuss the facts, arraign the conduct of the 

parties, impugn, excuse, justify or condemn motives according to the evidence, 

and attack the credibility of witnesses when the record supports the same. The 

court should not be severe in arresting argument on grounds that the argument or 

inference is illogical. 

(Emphasis added.) (Internal citations omitted.) Id. at ¶ 45. 

{¶28} Here, during cross-examination of L.L., defense counsel questioned her as 

whether she had missed appointments with Detective Bowen Carter, and L.L. maintained that 
12 

 

she did not know what defense counsel was asking about. During cross-examination of 

Detective Bowen Carter, the detective maintained that, although L.L. missed several scheduled 

meetings, she did so because she did not have transportation. Therefore, the detective went to 

L.L.’s home to meet with her. Detective Bowen Carter specifically stated that L.L. was not 

uncooperative. 

{¶29} In Powell, the Fourth District concluded that defense counsel was prevented from 

arguing inferences pertaining to motive that arose from the facts in evidence pertaining to the 

officer’s methods of detaining the defendant’s friend. Id. at ¶ 43-45. However, here, there was 

no indication in the record that law enforcement considered bringing charges against L.L., much 

less that law enforcement communicated to L.L an intent to do so. Therefore, there was no 

evidence from which it arguably could be inferred that L.L. would be motivated to maintain a 

fabricated story. See State v. Harris, 8th Dist. Cuyahoga No. 54700, 1989 WL 24922, *2 (Mar. 

16, 1989) (“parties may not comment upon the inferences to be drawn from facts not in 

evidence”). 

{¶30} Accordingly, the trial court did not abuse its discretion in sustaining the State’s 

objection, and Mr. Winchester’s second assignment of error is overruled. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE 

SENTENCES FOR KIDNAPPING AND RAPE, IN VIOLATION OF THE 

DOUBLE JEOPARDY CLAUSES OF THE OHIO AND UNITED STATES 

CONSTITUTIONS, STATE V. JOHNSON, AND SECTION 2941.25 OF THE 

OHIO REVISED CODE. 

{¶31} In his third assignment of error, Mr. Winchester argues that the trial court erred by 

failing to merge his convictions for rape and kidnapping because these offenses were allied 

offenses of similar import. We disagree. 
13 

 

{¶32} R.C. 2941.25 provides: 

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

more allied offenses of similar import, the indictment or information may contain 

counts for all such offenses, but the defendant may be convicted of only one. 

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

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

similar kind committed separately or with a separate animus as to each, the 

indictment or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them. 

{¶33} This statute “codifies the protections of the Double Jeopardy Clause of the Fifth 

Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, 

which prohibits multiple punishments for the same offenses.” State v. Williams, 134 Ohio St.3d 

482, 2012-Ohio-5699, ¶ 13, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 

23. 

{¶34} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, the Ohio 

Supreme Court held that, in determining whether two offenses are allied offenses of similar 

import, “the conduct of the accused must be considered.” The court must first determine 

“whether it is possible to commit one offense and commit the other with the same conduct,” and, 

if so, then “the court must determine whether the offenses were committed by the same conduct, 

i.e. ‘a single act, committed with a single state of mind.’” Id. at ¶ 48, 49, quoting State v. Brown, 

119 Ohio St. 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J. concurring). If the same conduct 

constituted both offenses, then they must be merged. Johnson at ¶ 50. We conduct the review of 

whether the sentences were subject to merger de novo. Williams at ¶ 1. 

{¶35} In considering this issue here, the trial court determined: 

As to the allied offense, I can envision where the kidnapping and rape could occur 

– I think a kidnapping is always going to be involved in a rape or certainly could 

oftentimes when somebody is restrained. So the further analysis on Johnson is 

whether or not these are separate acts and a separate animus. 
14 

 

And as I recall the testimony, this was a young lady walking home at 

approximately two a.m. in the morning to a relative’s home. The testimony was 

that she was forced into a vehicle and drive to a – by two men after being forced 

into the vehicle and drive to a home. The passenger got out and went into the 

house. 

The testimony was that the victim was forced out of the truck and sexually 

assaulted. That the defendant moved her to a separate location after forcing her 

back into the truck at which time the victim testified he pulled into a driveway of 

an unoccupied home, backed into the driveway, deep into the driveway where the 

rape occurred. 

So given those facts the court finds there were separate acts and a separate animus 

of the kidnapping, forcing her into the car and the rape and taking her to a 

different location and committing the act of rape. 

{¶36} In regard to the first merger issue of whether “it is possible” to commit a rape and 

a kidnapping “with the same conduct,” we agree with the trial court, and the State concedes, that 

it is. See Johnson at ¶ 48, 49. As Justice O’Donnell explained in a concurring opinion in 

Johnson, 

Consider the crimes of rape and kidnapping, for example. The elements of each 

are different. Rape, as defined in R.C. 2907.02(A)(2), is committed when a 

defendant engages in sexual conduct with another and the defendant purposefully 

compels the other person to submit by force or threat of force. Kidnapping, as 

defined in R.C. 2905.01(A)(4), is committed when by force, threat, or deception, 

* * * a defendant removes another from the place where the other person is found 

or restrains the liberty of the other with the purpose to engage in sexual activity 

with the victim against the victim’s will. 

Inevitably, every rapist necessarily kidnaps the victim, because the conduct of 

engaging in sexual conduct by force results in a restraint of the victim’s liberty. 

Thus, in those circumstances, the conduct of the defendant can be construed to 

constitute two offenses—rape and kidnapping—and an indictment may contain 

counts for each, but the defendant may be convicted of only one. 

In a different factual situation, however, if the [S]tate presented evidence that a 

defendant lured a victim to his home by deception, for example, and then raped 

that victim, an indictment may contain separate counts for the rape and for the 

kidnapping. In this hypothetical, different conduct—the luring of the victim by 

deception and the separate act of rape—results in two offenses being committed 

separately; therefore, the indictments may contain counts for both offenses and 

the defendant may be convicted of both. See, e.g., State v. Ware, 63 Ohio St.2d 84 
15 

 

(1980) (the defendant could be convicted of both kidnapping and rape because he 

lured the victim to his home by deception before raping her). 

(Emphasis added.) (Footnotes omitted.) Johnson at ¶ 79-81 (O’Donnell, J. concurring in 

judgment and syllabus). Therefore, we turn to the second issue of merger, that of whether the 

offenses were committed by the same conduct. Johnson at ¶ 48, 49. 

{¶37} It is not clear from the indictment which acts the State intended to prove as 

constituting the kidnapping. See e.g. State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio1769, ¶ 24 (noting that, “[b]ecause the State did not define in the indictment or at trial the 

conduct that it believed constituted the kidnapping * * *, it is impossible to say for certain what 

conduct the jury concluded constituted the kidnapping”). Instead, the indictment alleged that Mr. 

Winchester “by force, threat, or deception, [did] remove and/or restrain the liberty of L.L. * * * 

for the purpose of facilitating the commission of any felony or flight thereafter and[/]or 

terrorizing, or to inflict serious physical harm on the victim or another and/or engaging in sexual 

activity, as defined in section 2907.01 of the Ohio Revised Code, with the victim against the 

victim’s will in violation of Section R.C. 2905.01(A)(2)/(3)/(4) of the Ohio Revised Code[.]” 

However, it appears from the record that the State’s theory of kidnapping was based upon the 

actions of Mr. Winchester in regard to allegedly forcing L.L. into the car while she was walking 

down the street. In its opening statement, the State maintained that the evidence would show 

that, after L.L. declined a ride from Mr. Winchester, he stopped the car, got out, grabbed her and 

forced her into the vehicle. In closing argument, the State referenced the kidnapping as having 

occurred prior to Mr. Winchester dropping off his passenger. The evidence of L.L.’s statements 

to the sexual assault nurse examiner, Ms. Diamond, when receiving medical treatment, supported 

this theory of the case. Ms. Diamond testified that L.L. had stated that her attacker “threw” her 

into the car after she declined his offer of a ride. 
16 

 

{¶38} Thus, we must determine whether these facts support a kidnapping which 

occurred by different conduct than that which constituted the rape. In Williams at ¶ 23, the 

Supreme Court referenced “guidelines to determine whether kidnapping and rape are committed 

with a separate animus so as to permit separate punishment”. Those guidelines were set forth in 

State v. Logan, 60 Ohio St.2d 126, (1979), syllabus: 

(a) Where the restraint or movement of the victim is merely incidental to a 

separate underlying crime, there exists no separate animus sufficient to sustain 

separate convictions; however, where the restraint is prolonged, the confinement 

is secretive, or the movement is substantial so as to demonstrate a significance 

independent of the other offense, there exists a separate animus as to each offense 

sufficient to support separate convictions; 

(b) Where the asportation or restraint of the victim subjects the victim to a 

substantial increase in risk of harm separate and apart from that involved in the 

underlying crime, there exists a separate animus as to each offense sufficient to 

support separate convictions. 

Here, we conclude that Mr. Winchester’s conduct of forcing L.L. into the car was not the same 

conduct that constituted the rape. The rape occurred after dropping off the passenger and driving 

to a second location. This constituted “restraint [that] was prolonged” and “movement [that] was 

substantial so as to demonstrate a significance independent of” the rape. See Logan at syllabus. 

Therefore, there existed “a separate animus as to each offense sufficient to support separate 

convictions[.]” See id. Accordingly, Mr. Winchester’s third assignment of error is overruled.

ASSIGNMENT OF ERROR I

[MR. WINCHESTER] WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF STRICKLAND V. WASHINGTON, THE SIXTH 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION. 

{¶39} In his first assignment of error, Mr. Winchester contends that his trial counsel was 

ineffective by failing to obtain evidence establishing that Mr. Winchester and L.L. knew each 

other prior to the incident in order to undermine L.L.’s credibility. We disagree. 
17 

 

{¶40} This Court must analyze claims of ineffective assistance of counsel under a 

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984); 

State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1) 

deficiency in the performance of counsel “so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by 

counsel were “so serious as to deprive the defendant of a fair trial [.]” Strickland at 687. A 

defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is a 

reasonable probability that the outcome of the trial would have been different. Id. at 694. In 

applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance[.]” Id. at 689. With this standard in mind, 

we will examine separately the respects in which Mr. Winchester claims that his trial counsel 

was ineffective. 

Genetic Testing

{¶41} First, Mr. Winchester argues that his counsel was ineffective for failing to request 

either genetic testing of L.L.’s child or to request any records related to genetic testing conducted 

on the child. Mr. Winchester maintains that these records may have indicated that Mr. 

Winchester fathered L.L.’s child, thereby lessening her credibility, as she testified that she did 

not know Mr. Winchester. However, it is mere speculation that the genetic tests would reveal 

that Mr. Winchester fathered L.L.’s baby. State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 

2013-Ohio-3072, ¶ 4 (“When affidavits or other proof outside the record are necessary to support 

an ineffective assistance claim, * * * it is not appropriate for consideration on direct appeal.”) 

As the results of such testing are entirely speculative, we decline to pass upon whether evidence 

that Mr. Winchester was the biological father of L.L.’s child would have affected L.L.’s 
18 

 

credibility to such an extent that there is a reasonable probability that the jury would not believe 

the remainder of the testimony as to the commission of the offenses. 

{¶42} Further, at the commencement of trial, the trial court ruled on a motion in limine 

filed by the State to exclude evidence of L.L.’s past sexual conduct on the basis of the rape shield 

law. The trial court granted the State’s request. See R.C. 2907.02(D). During crossexamination of L.L.’s grandmother, defense counsel inquired as to who fathered L.L.’s child. 

Her grandmother responded with the name of a man who was not Mr. Winchester. The State 

then objected and, during a sidebar discussion, requested a mistrial because the questions raised 

by the defense counsel were in violation of the court’s ruling on the motion in limine and the 

rape shield law. Defense counsel maintained that he had a good faith belief that Mr. Winchester 

was the father of the child, and the rape shield law did not preclude this line of questioning. 

Thereafter, the parties had a discussion off of the record. When the proceedings came back on 

the record, the trial court denied the State’s motion for a mistrial and instructed defense counsel 

not to continue with this line of questioning, because the trial court concluded that the defense 

was attempting to circumvent the rape shield law by phrasing its questions in terms of parentage 

of L.L.’s child. The court concluded that parentage of L.L.’s child was irrelevant to the 

proceedings. On appeal, Mr. Winchester has not challenged this ruling. Therefore, we cannot 

discern in what way obtaining records demonstrating paternity, even had such records indicated 

that Mr. Winchester was the father of L.L.’s child, would have assisted him. 

{¶43} Accordingly, we cannot conclude that Mr. Winchester was prejudiced by trial 

counsel’s failure to obtain scientific proof of the biological father of L.L.’s child. See State v. 

Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10 (this Court need not address both 
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prongs of Strickland where an appellant fails to prove either prong). Therefore, Mr. Winchester 

has failed to demonstrate ineffective assistance of counsel in this respect. 

Unavailable Witness

{¶44} Next, Mr. Winchester argues that trial counsel was ineffective in failing to request 

that the purported passenger of Mr. Winchester’s car, Teon Stallworth, be declared an 

unavailable witness pursuant to Evid.R. 804(A). At trial, the defense called Mr. Stallworth, but 

shortly after questioning began, the trial court stopped the proceedings to allow Mr. Stallworth 

the opportunity to consult with an attorney regarding his Fifth Amendment rights. After doing 

so, counsel for Mr. Stallworth indicated that his client would be invoking the Fifth Amendment, 

and the trial court instructed the jury to disregard Mr. Stallworth’s brief testimony because he 

was not subjected to cross-examination. In Mr. Winchester’s brief, Mr. Winchester indicates 

that Mr. Stallworth was prepared to testify that L.L. and Mr. Winchester had a previous 

relationship and that she voluntarily or willingly got into Mr. Winchester’s car. However, 

having not testified, the record does not establish what Mr. Stallworth’s testimony would have 

been as to the purported prior relationship, nor does it establish that Mr. Stallworth was the 

passenger of the vehicle on July 17, 2012, much less that he would testify that L.L. willingly got 

into the vehicle. Thus, the record before us is devoid of evidence supporting the argument that 

Mr. Winchester was prejudiced by trial counsel’s purported failure. See Zupancic at ¶ 4, and Ray

at ¶ 10. 

{¶45} Accordingly, we cannot say that defense counsel was ineffective for failing to 

request that Mr. Stallworth be declared an unavailable witness. Therefore, his first assignment of 

error is overruled. 
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III. 

{¶46} Mr. Winchester’s assignments of error are overruled. The judgment of the 

Summit County Common Pleas Court is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 CARLA MOORE 

 FOR THE COURT 

WHITMORE, J. 

CONCURS.
21 

 

BELFANCE, J. 

CONCURRING IN JUDGMENT ONLY.

{¶47} I concur in the majority’s judgment. I write separately to briefly discuss Mr. 

Winchester’s first three assignments of error. 

{¶48} With respect to Mr. Winchester’s first assignment of error asserting ineffective 

assistance of counsel, Mr. Winchester’s argument is premised upon the idea that Mr. Winchester 

and the victim knew each other and his counsel failed to produce evidence that would support his 

contention. He reasons that, if such evidence had been presented, it would have completely 

undermined the victim’s assertion that her attacker was unknown to her. 

{¶49} As part of his assertion that counsel failed to adequately prepare for trial, Mr. 

Winchester argues that DNA testing should have been completed on the victim’s child in an 

attempt to demonstrate that Mr. Winchester was the father of the child. However, there is 

nothing in this record that demonstrates that counsel did or did not seek DNA testing. Moreover, 

there is nothing in the record that would suggest that the DNA test would establish Mr. 

Winchester’s paternity of the victim’s child. Thus, given the reliance on matters entirely outside 

the record, Mr. Winchester cannot prevail in a direct appeal. 

{¶50} Mr. Winchester also complains that counsel was ineffective in failing to request 

that Teon Stallworth, who was allegedly in the vehicle with Mr. Winchester and the victim 

during a portion of the incident, be declared an unavailable witness. I agree that what Mr. 

Stallworth may have, or could have, said is not contained in the record before us and, therefore, 

cannot be considered by this Court. 

{¶51} With respect to Mr. Winchester’s second assignment of error in which he asserts 

that he was prevented from arguing that the victim continued to maintain a fabricated version of 

evidence in order to avoid prosecution, I agree his argument is properly overruled. As noted by 
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the majority, there is nothing in the record which would allow an inference that the victim had 

been threatened with criminal charges if she recanted. Further, it is unclear what more counsel 

would have said about the matter. However, Mr. Winchester was allowed to point out credibility 

issues with the jury by arguing that the victim’s actions could indicate that her testimony might 

not be truthful. Thus, it is difficult to discern how Mr. Winchester was prejudiced. 

{¶52} Finally, I agree that Mr. Winchester’s third assignment of error is properly 

overruled. Based upon the evidence, Mr. Winchester’s convictions for rape and kidnapping 

should not have merged. In light of the evidence adduced in this case, it can be concluded that 

the kidnapping began when the victim was forced into the car, and given the ensuing events, the 

kidnapping was committed separately and with a separate animus, and not merely incidental the 

to the commission of the rape. Accordingly, I agree that the trial court properly concluded the 

offenses were not allied. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 51 

(stating that “if the offenses are committed separately, or if the defendant has [a] separate animus 

for each offense, then, according to R.C. 2941.25(B), the offenses will not merge[]”). 

{¶53} In light of the foregoing, I concur in the majority’s judgment. 

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.