[Cite as State v. Ellison, 2024-Ohio-653.]

Atty. Gina DeGenova, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee and

Atty. Rhys B. Cartwright-Jones, for Defendant-Appellant.

Dated: February 21, 2024

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

KYLE ELLISON,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 23 MA 0019

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 2021 CR 703B

BEFORE:

William A. Klatt, Retired Judge of the Tenth District Court of Appeals,

Sitting by Assignment, 

Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.
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Case No. 23 MA 0019

KLATT, J.

Appellant, Kyle Ellison, appeals from the February 6, 2023 judgment of the 

Mahoning County Court of Common Pleas. Following a trial by jury, Appellant was found 

guilty of kidnapping, abduction, robbery, and assault. The trial court sentenced him to 

five years (minimum) to seven and one-half years (maximum) in prison.1 On appeal, 

Appellant raises arguments involving sufficiency of the evidence, manifest weight, 

cumulative error doctrine, and actual vindictiveness in sentencing on the part of the trial 

court. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 18, 2021, Appellant and his co-defendants, Undrel Fletcher 

(“Fletcher”), Keith Ellison (“Keith”), and Anthony Ellison (“Anthony”), were indicted by the 

Mahoning County Grand Jury on eight counts:2 count one (all defendants), kidnapping, 

a felony of the first degree in violation of R.C. 2905.01(A)(1), (2), (3) and (C)(1), with a 

firearm specification; count two (all defendants), abduction, a felony of the third degree in 

violation of R.C. 2905.02(A)(1), (2) and (C), with a firearm specification; count three (all 

defendants), aggravated robbery, a felony of the first degree in violation of R.C. 

2911.01(A)(3) and (C), with a firearm specification; count four (all defendants), robbery, 

a felony of the second degree in violation of R.C. 2911.02(A)(2) and (B), with a firearm 

specification; count five (all defendants), felonious assault, a felony of the second degree

in violation of R.C. 2903.11(A) and (D)(1)(a), with a firearm specification; count six (all 

defendants), assault, a misdemeanor of the first degree in violation of R.C. 2903.13(A) 

and (C); count seven (Appellant only), having weapons while under disability, a felony of 

the third degree in violation of R.C. 2923.13(A)(2) and (B); and count eight (Anthony only), 

having weapons while under disability, a felony of the third degree in violation of R.C. 

2923.13(A)(2) and (B). Appellant retained counsel, pled not guilty at his arraignment, and 

waived his right to a speedy trial.

1 Am. Sub. S.B. No. 201, 2018 Ohio Laws 157, known as the “Reagan Tokes Law,” significantly altered the 

sentencing structure for many of Ohio’s most serious felonies by implementing an indefinite sentencing 

system for those non-life felonies of the first and second degree, committed on or after March 22, 2019. 

2 Appellant, Keith, and Anthony (or collectively “the Ellisons”) are brothers. 
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Case No. 23 MA 0019

A trial by jury involving Appellant, Keith, and Anthony commenced on 

November 28, 2022.3

Appellee, the State of Ohio, presented seven witnesses: (1) Alex Wharry 

(“Officer Wharry”), an officer with Youngstown Police Department (“YPD”); (2) John 

O’Neill (“Officer O’Neill”), an officer with YPD; (3) Jason Smith (“Paramedic Smith”), a 

paramedic with AMR Ambulance; (4) Billy Hall, Jr. (“Billy”), the victim, who revealed that 

the defendants were friends of his brother, Jonah Hall; (5) Jonah Hall (“Jonah”), who 

indicated he was friends with the defendants; (6) Fletcher, who made a deal with the State 

to testify against the defendants; and (7) Michael Cox (“Detective Cox”), a detective with 

YPD. 

Billy met Fletcher when they were in middle school. (11/28/2022 Trial by 

Jury Tr., p. 336). Billy later met Appellant, Keith, and Anthony through his brother, Jonah. 

(Id.) 

On October 5, 2021, Billy was playing Call of Duty with his neighbor, Aliyah. 

(Id. at p. 338-339). After the game, Billy walked her home. (Id. at p. 339). A red Chrysler 

300 with black wheels and tinted windows stopped in front of Billy’s house. (Id. at p. 340-

341). Keith exited the vehicle, approached Billy, and “shoved [him] into the car[.]” (Id. at 

p. 343). Also inside the vehicle were Appellant and Fletcher. (Id. at p. 343-344). 

Keith drove them to their house on Neilson Avenue. (Id. at p. 345). 

Appellant sat in the front passenger’s seat and Fletcher sat in the backseat next to Billy. 

(Id.) Billy said that Keith and Appellant were yelling about something. (Id. at p. 345-347). 

Once they arrived at the house, Keith and Anthony pulled Billy from the vehicle. (Id. at p. 

346). Billy “started getting beaten on and punched and brutally hurt.” (Id.) Billy tried to 

flee but ended up falling. (Id. at p. 347). Billy said Appellant, Keith, and Anthony all 

assaulted him while Fletcher watched. (Id. at p. 396). 

Billy observed a handgun pointed at his head and the man holding it said, 

“I need my money.” (Id. at p. 348-349). Billy was struck with “[a] fist and a gun in [his] 

face.” (Id. at p. 353). Billy said they struck him with the gun on his face, head, and lower 

back. (Id.) Appellant, Keith, and Anthony were present and they went through Billy’s 

3 On November 30, 2022, Appellant filed a waiver and relinquishment of his right to a trial by jury on count 

seven (having weapons while under disability). 
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Case No. 23 MA 0019

pockets looking for money while continuing to assault him. (Id. at p. 347-350). They 

eventually drove Billy back to his house on Loveland Road. (Id. at p. 351). En route, they 

continued assaulting him. (Id. at p. 350-352). When they arrived, Billy’s brother, Jonah, 

came outside. (Id. at p. 352). Keith told Jonah what was going on before the men fled 

the scene. (Id. at p. 354). 

Billy testified that Appellant, Keith, and Anthony claimed he took $300 or 

$300 worth of marijuana from them. (Id. at p. 391). Keith said to Billy, “why would you 

steal from me, I treat you like family.” (Id. at p. 379-380). Billy denies stealing anything. 

(Id. at p. 381). 

Fletcher agreed to testify against Appellant, Keith, and Anthony and the 

State agreed to recommend a community control sanction. (Id. at p. 447-448).

After Fletcher was arrested, he spoke with Detective Cox. (Id. at p. 449-

450). Fletcher met Billy in elementary school. (Id. at p. 451). Fletcher met Jonah through 

his friendship with Billy and later met Appellant, Keith, and Anthony through Jonah. (Id. 

at p. 452-453).

On the day at issue, Fletcher walked to a nearby gas station. (Id. at p. 453-

454). Fletcher saw Keith in his red Chrysler 300 and asked him for a ride. (Id. at p. 455). 

Keith drove Fletcher to the gas station then to Billy’s house. (Id. at p. 456). Appellant 

was also present in the vehicle. (Id.) Fletcher said Appellant or Keith told him they were 

going to Billy’s house to get their money back. (Id.) After they arrived, Appellant and 

Keith forced Billy into the backseat while hitting and kicking him. (Id. at p. 459). Fletcher 

remained in the vehicle. (Id. at p. 458). Keith said to Billy, “you better have my money.” 

(Id. at p. 460). Keith drove them back to his house a few blocks away. (Id. at p. 461). 

At the Ellisons’ house on Neilson, Appellant and Keith pulled Billy from the 

vehicle and Anthony came outside and met them. (Id. at p. 462). Appellant, Keith, and 

Anthony began assaulting Billy. (Id. at p. 465). Fletcher said Keith went through Billy’s 

pockets and Fletcher observed Appellant with a Glock handgun. (Id. at p. 462, 466). 

Fletcher stated that the Ellisons said to Billy, “You stole money, I need my money back.” 

(Id. at p. 473). Fletcher testified that Billy tried to run away but Appellant, Keith, and 

Anthony grabbed Billy, assaulted him, and threw him back in the vehicle. (Id. at p. 467). 

Inside the car, Appellant, Keith, and Anthony continued to assault Billy. (Id. at p. 468-
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Case No. 23 MA 0019

469). When they arrived back at Billy’s house, Appellant, Keith, and Anthony “beat [Billy] 

up some more in the yard[.]” (Id. at p. 469). 

Fletcher denied touching or assaulting Billy and denied that he assisted in 

setting up the assault. (Id. at p. 459, 469-470, 496-497). Fletcher did say, however, that 

he sent Keith a text message prior to the incident telling him that Billy stole from him. (Id. 

at p. 512). 

Billy’s brother, Jonah, testified he was outside and saw Appellant, Keith, 

and Anthony exit the red Chrysler 300 and pull Billy from the backseat. (Id. at p. 410). 

Jonah saw Anthony punch Billy’s face. (Id. at p. 411). Appellant, Keith, and Anthony 

began yelling at Jonah. (Id. at p. 412). Appellant told Jonah that Billy stole money and 

marijuana. (Id.) Keith asked Jonah where the money was. (Id.) Later that afternoon, 

Jonah asked Keith via text message how much Billy owed. (Id. at p. 418-419). Keith 

indicated, “$300,” along with threats and vulgarities. (Id. at p. 419-423). 

Officer Wharry responded to Loveland Road. (Id. at p. 244). He observed 

Billy “in the driveway without a shirt on and he wasn’t wearing any shoes; kind of beat 

up.” (Id. at p. 245). Officer Wharry also observed Billy “had a bloody lip, cuts, scrapes, 

[on his] face, shoulders, arms.” (Id.) Officer Wharry described Billy’s demeanor as, “pretty 

excited, pretty worked up, pacing [b]ack and forth. Visibly upset[.]” (Id.) Billy told Officer 

Wharry “that he was forced into a car and physically assaulted.” (Id. at p. 246). Billy said 

the vehicle was a red Chrysler 300. (Id. at p. 246-248). Billy indicated that Appellant, 

Keith, Anthony, Fletcher, and Myia Williams were there. (Id. at p. 257-258, 263). 

Officer O’Neill also responded and encountered Billy. (Id. at p. 272-273). 

Officer O’Neill stated Billy was bare-chested; had several injuries to his head and face; 

had wounds on his head, chest, and back; and his head was bleeding. (Id. at p. 273-

274). Billy told the officers that “he was taken to a car by people that he knew and he had 

something that was owed and they ended up beating him up in the vehicle and then 

bringing him back to 3533 Loveland.” (Id. at p. 276). Billy said he was put in the suspects’ 

vehicle “unwillingly.” (Id.) 

Paramedic Smith treated Billy’s injuries. (Id. at p. 302, 306). He described 

Billy’s demeanor as “[v]ery animated,” “[u]pset,” “[m]oving around.” (Id. at p. 306). Billy 

had “abrasions to his face, his forehead, to his back and small laceration above his left 
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Case No. 23 MA 0019

buttock.” (Id.) A cervical collar was placed around Billy’s neck because he had multiple 

injuries to his head. (Id. at p. 309). Billy told Paramedic Smith “that he was abducted and 

struck multiple times by assailants; did not say with what or by who.” (Id. at p. 308). Billy 

was taken to the hospital via ambulance for treatment. (Id. at p. 279). 

Detective Cox conducted an investigation. (Id. at p. 540). On October 7, 

2021, Detective Cox spoke with Billy and Jonah at the police station. (Id. at p. 541). 

Detective Cox observed Billy’s injuries during the interview. (Id. at p. 575). After speaking 

with them, the suspects included Appellant, Keith, Anthony, and Fletcher. (Id. at p. 542). 

Through the investigation, Detective Cox learned that Appellant shared a news article on 

Facebook that referenced the incident involving Billy. (Id. at p. 545). Appellant posted 

on Facebook, “niggas ain’t playing bout dat pape, with three cry - - laughing to the point 

of crying emojies.” (Id. at p. 546, 618-619). Detective Cox explained that “pape” is a 

slang term for paper money. (Id.) One of the photographs found on Appellant’s Facebook 

page shows Appellant with a firearm. (Id. at p. 568-569). That firearm matches Fletcher’s 

description of the firearm used in this incident. (Id. at p. 616). Fletcher described the gun 

as “a desert tan brown,” and thought it was a Glock. (Id. at p. 611). 

At the conclusion of the State’s case, Appellant moved for an acquittal 

pursuant to Crim.R. 29, which was overruled by the trial court. The defense rested 

without presenting evidence. Appellant’s renewed motion for judgment of acquittal was 

overruled.

The jury found Appellant guilty on count one (kidnapping), count two 

(abduction), count four (robbery), and count six (assault). The jury found Appellant not 

guilty on count three (aggravated robbery), count five (felonious assault), and on all of the 

firearm specifications. 

On December 21, 2022, the trial court entered judgment on the verdicts, 

deferred sentencing, and ordered a pre-sentence investigation. 

On February 6, 2023, following a sentencing hearing, the trial court 

sentenced Appellant to five years (minimum) to seven and one-half years (maximum) on 

count one (kidnapping), five years (minimum) to seven and one-half years (maximum) on 

count four (robbery), and six months on count six (assault). The court imposed the 

sentences concurrently. The court merged count two (abduction) into count one 
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Case No. 23 MA 0019

(kidnapping) upon the State’s election. The court further notified Appellant that he is 

subject to mandatory post-release control for a period of up to five years but not less than 

two years. 

Appellant filed a timely appeal and raises six assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT OF 

ROBBERY ON INSUFFICIENT EVIDENCE, AS THE PROSECUTION 

FAILED TO MEET ITS BURDEN OF PRODUCTION AT TRIAL TO PROVE 

A NECESSARY ELEMENT OF THE CRIME, NAMELY “THEFT.”

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT OF 

ROBBERY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, 

GIVEN THAT THE PROSECUTION COULD NOT PROVIDE 

CONVINCING EVIDENCE OF AN UNDERLYING ACT OF THEFT, A 

NECESSARY ELEMENT FOR SUCH A CONVICTION.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN UPHOLDING A CONVICTION FOR 

KIDNAPPING AGAINST THE SUFFICIENCY STANDARD, AS THERE 

WAS INSUFFICIENT EVIDENCE OF AN UNDERLYING FELONY OR 

SERIOUS PHYSICAL HARM, ELEMENTS NECESSARY FOR SUCH A 

CONVICTION.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY 

CONVICTING THE DEFENDANT OF KIDNAPPING AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE, GIVEN THE ABSENCE OF AN 

UNDERLYING FELONY OR EVIDENCE OF SERIOUS PHYSICAL HARM, 

THEREBY CONTRAVENING THE MANIFEST WEIGHT STANDARD.
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Case No. 23 MA 0019

In his first, second, third, and fourth assignments of error, Appellant argues 

his convictions for kidnapping and robbery are not supported by sufficient evidence and 

are against the manifest weight of the evidence. For ease of discussion, because these 

assignments are interrelated, we will consider them in a consolidated fashion. 

“When a court reviews a record for sufficiency, ‘(t)he relevant inquiry is 

whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential 

elements of the crime proven beyond a reasonable doubt.’” State v. 

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two 

of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 

560 (1979).

In determining whether a criminal conviction is against the manifest weight 

of the evidence, an 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. State v. Thompkins, 78 Ohio 

St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 

2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.* * *

The weight to be given to the evidence and the credibility of the witnesses 

are nonetheless issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 

230, 227 N.E.2d 212 (1967). The trier of fact “has the best opportunity to 

view the demeanor, attitude, and credibility of each witness, something that 

does not translate well on the written page.” Davis v. Flickinger, 77 Ohio 

St.3d 415, 418, 674 N.E.2d 1159 (1997).

State v. T.D.J., 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46-48. 
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Case No. 23 MA 0019

“‘(C)ircumstantial evidence and direct evidence inherently possess the 

same probative value.’” State v. Biros, 78 Ohio St.3d 426, 447, 678 N.E.2d 891 (1997), 

quoting Jenks, supra, paragraph one of the syllabus.

For the reasons addressed below, we determine the judgment is not against 

the manifest weight of the evidence and further conclude it is supported by sufficient 

evidence.

Appellant takes issue with the guilty findings for kidnapping and robbery.

Count one, kidnapping, a felony of the first degree in violation of R.C. 

2905.01, states in 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:

(1) To hold for ransom, or as a shield or hostage;

(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;

* * *

(C)(1) Whoever violates this section is guilty of kidnapping. * * *

R.C. 2905.01(A)(1), (2), (3), and (C)(1).

Count four, robbery, a felony of the second degree in violation of R.C. 

2911.02, states in part:

(A) No person, in attempting or committing a theft offense or in fleeing 

immediately after the attempt or offense, shall do any of the following:

* * *

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

* * *
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Case No. 23 MA 0019

(B) Whoever violates this section is guilty of robbery. * * *

R.C. 2911.02(A)(2) and (B). 

As stated, on October 5, 2021, a red Chrysler 300 stopped in front of Billy’s 

house. (11/28/2022 Trial by Jury Tr., p. 340-341). Keith exited the vehicle, approached 

Billy, and “shoved [him] into the car[.]” (Id. at p. 343). Also inside the vehicle were 

Appellant and Fletcher. (Id. at p. 343-344). 

Keith drove them to their house on Neilson Avenue. (Id. at p. 345). 

Appellant sat in the front passenger’s seat and Fletcher sat in the backseat next to Billy. 

(Id.) Billy said that Keith and Appellant were yelling about something. (Id. at p. 345-347). 

Once they arrived at the house, Keith and Anthony pulled Billy from the vehicle. (Id. at p. 

346). Billy “started getting beaten on and punched and brutally hurt.” (Id.) Billy tried to 

flee but ended up falling. (Id. at p. 347). Billy said Appellant, Keith, and Anthony all 

assaulted him while Fletcher watched. (Id. at p. 396). 

Billy observed a handgun pointed at his head and the man holding it said, 

“I need my money.” (Id. at p. 348-349). Billy was struck with “[a] fist and a gun in [his] 

face.” (Id. at p. 353). Billy said they struck him with the gun on his face, head, and lower 

back. (Id.) Appellant, Keith, and Anthony were present and went through Billy’s pockets 

looking for money while continuing to assault him. (Id. at p. 347-350). They eventually 

drove Billy back to his house on Loveland. (Id. at p. 351). En route, they continued 

assaulting him. (Id. at p. 350-352). When they arrived, Billy’s brother, Jonah, came 

outside. (Id. at p. 352). Keith told Jonah what was going on before the men fled the 

scene. (Id. at p. 354). 

Billy testified that Appellant, Keith, and Anthony claimed he took $300 or 

$300 worth of marijuana from them. (Id. at p. 391). Keith said to Billy, “why would you 

steal from me, I treat you like family.” (Id. at p. 379-380). Billy denies stealing anything. 

(Id. at p. 381). 

After Fletcher was arrested, he spoke with Detective Cox. (Id. at p. 449-

450). On the day at issue, Fletcher walked to a nearby gas station. (Id. at p. 453-454). 

Fletcher saw Keith in his red Chrysler 300 and asked him for a ride. (Id. at p. 455). Keith 

drove Fletcher to the gas station then to Billy’s house. (Id. at p. 456). Appellant was also 
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Case No. 23 MA 0019

present in the vehicle. (Id.) Fletcher said Appellant or Keith told him they were going to 

Billy’s house to get their money back. (Id.) After they arrived, Appellant and Keith forced 

Billy into the backseat while hitting and kicking him. (Id. at p. 459). Fletcher remained in 

the vehicle. (Id. at p. 458). Keith said to Billy, “you better have my money.” (Id. at p. 

460). Keith drove them back to his house a few blocks away. (Id. at p. 461). 

At the Ellisons’ house on Neilson, Appellant and Keith pulled Billy from the 

vehicle and Anthony came outside and met them. (Id. at p. 462). Appellant, Keith, and 

Anthony began assaulting Billy. (Id. at p. 465). Fletcher said Keith went through Billy’s 

pockets and Fletcher observed Appellant with a Glock handgun. (Id. at p. 462, 466). 

Fletcher stated that the Ellisons said to Billy, “You stole money, I need my money back.” 

(Id. at p. 473). Fletcher testified that Billy tried to run away but Appellant, Keith, and 

Anthony grabbed Billy, assaulted him, and threw him back in the vehicle. (Id. at p. 467). 

Inside the car, Appellant, Keith, and Anthony continued to assault Billy. (Id. at p. 468-

469). When they arrived back at Billy’s house, Appellant, Keith, and Anthony “beat [Billy] 

up some more in the yard[.]” (Id. at p. 469). 

Billy’s brother, Jonah, testified he was outside and saw Appellant, Keith, 

and Anthony exit the red Chrysler 300 and pull Billy from the backseat. (Id. at p. 410). 

Jonah saw Anthony punch Billy’s face. (Id. at p. 411). Appellant, Keith, and Anthony 

began yelling at Jonah. (Id. at p. 412). Appellant told Jonah that Billy stole money and 

marijuana. (Id.) Keith asked Jonah where the money was. (Id.) Later that afternoon, 

Jonah asked Keith via text message how much Billy owed. (Id. at p. 418-419). Keith 

indicated, “$300,” along with threats and vulgarities. (Id. at p. 419-423). 

Officer Wharry responded to Loveland Road. (Id. at p. 244). He observed 

Billy “in the driveway without a shirt on and he wasn’t wearing any shoes; kind of beat 

up.” (Id. at p. 245). Officer Wharry also observed Billy “had a bloody lip, cuts, scrapes, 

[on his] face, shoulders, arms.” (Id.) Officer Wharry described Billy’s demeanor as, “pretty 

excited, pretty worked up, pacing [b]ack and forth. Visibly upset[.]” (Id.) Billy told Officer 

Wharry “that he was forced into a car and physically assaulted.” (Id. at p. 246). Billy said 

the vehicle was a red Chrysler 300. (Id. at p. 246-248). Billy indicated that Appellant, 

Keith, Anthony, Fletcher, and Myia Williams were there. (Id. at p. 257-258, 263). 
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Case No. 23 MA 0019

Officer O’Neill also responded and encountered Billy. (Id. at p. 272-273). 

Officer O’Neill stated Billy was bare-chested; had several injuries to his head and face; 

had wounds on his head, chest, and back; and his head was bleeding. (Id. at p. 273-

274). Billy told the officers that “he was taken to a car by people that he knew and he had 

something that was owed and they ended up beating him up in the vehicle and then 

bringing him back to 3533 Loveland.” (Id. at p. 276). Billy said he was put in the suspects’ 

vehicle “unwillingly.” (Id.) 

Paramedic Smith treated Billy’s injuries. (Id. at p. 302, 306). He described 

Billy’s demeanor as “[v]ery animated,” “[u]pset,” “[m]oving around.” (Id. at p. 306). Billy 

had “abrasions to his face, his forehead, to his back and small laceration above his left 

buttock.” (Id.) A cervical collar was placed around Billy’s neck because he had multiple 

injuries to his head. (Id. at p. 309). Billy told Paramedic Smith “that he was abducted and 

struck multiple times by assailants; did not say with what or by who.” (Id. at p. 308). Billy 

was taken to the hospital via ambulance for treatment. (Id. at p. 279). 

Detective Cox conducted an investigation. (Id. at p. 540). On October 7, 

2021, Detective Cox spoke with Billy and Jonah at the police station. (Id. at p. 541). 

Detective Cox observed Billy’s injuries during the interview. (Id. at p. 575). After speaking 

with them, the suspects included Appellant, Keith, Anthony, and Fletcher. (Id. at p. 542). 

Through the investigation, Detective Cox learned that Appellant shared a news article on 

Facebook that referenced the incident involving Billy. (Id. at p. 545). Appellant posted 

on Facebook, “niggas ain’t playing bout dat pape, with three cry - - laughing to the point 

of crying emojies.” (Id. at p. 546, 618-619). Detective Cox explained that “pape” is a 

slang term for paper money. (Id.) One of the photographs found on Appellant’s Facebook 

page shows Appellant with a firearm. (Id. at p. 568-569). That firearm matches Fletcher’s 

description of the firearm used in this incident. (Id. at p. 616). Fletcher described the gun 

as “a desert tan brown,” and thought it was a Glock. (Id. at p. 611). 

Contrary to Appellant’s assertions, there was sufficient evidence to 

establish the underlying theft offense as the record reveals Appellant, Keith, and Anthony 

were present and they went through Billy’s pockets looking for money while assaulting 

him. (11/28/2022 Trial by Jury Tr., p. 347-350); See State v. Holloway, 8th Dist. 

Cuyahoga No. 112129, 2023-Ohio-2387, ¶ 37-38 (finding sufficient evidence for 
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Case No. 23 MA 0019

aggravated robbery where the defendants rummaged through the victim’s pockets and 

vehicle); State v. Tyus, 8th Dist. Cuyahoga No. 108270, 2020-Ohio-103, ¶ 15-16 (finding 

sufficient evidence for robbery after the defendant physically attacked the victim while 

rummaging through his personal belongings looking for something to steal). In addition, 

“implicit within every robbery (and aggravated robbery) is a kidnapping.” State v. Jenkins, 

15 Ohio St.3d 164, 198, fn. 29 (1984). Here, the kidnapping facilitated the robbery, i.e., 

Billy was forced into the vehicle; seriously, physically harmed by Appellant, Keith, and 

Anthony; and went to the hospital via ambulance for treatment. 

Pursuant to Jenks, supra, there is sufficient evidence upon which the jury 

could reasonably conclude beyond a reasonable doubt that the elements of kidnapping 

and robbery were proven. Thus, the trial court did not err in overruling Appellant’s Crim.R. 

29 motion.

Also, the jury chose to believe the State’s witnesses. DeHass, supra, at 

paragraph one of the syllabus. Based on the evidence presented, as previously stated, 

the jury did not clearly lose its way in finding Appellant guilty of kidnapping and robbery. 

Thompkins, supra, at 387.

Appellant’s first, second, third, and fourth assignments of error are without 

merit. 

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING 

THE DEFENDANT A FAIR TRIAL AND DUE PROCESS, IN LIGHT OF 

MULTIPLE INSTANCES OF TRIAL COURT AND COUNSEL ERRORS, 

WHOSE CUMULATIVE EFFECT COMPROMISED THE APPELLANT’S 

RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE 

CUMULATIVE ERROR DOCTRINE.

In his fifth assignment of error, Appellant asserts his conviction should be 

reversed because of cumulative error.

Under the doctrine of cumulative error, a conviction will be reversed when 

the cumulative effect of error during a trial deprives a defendant of a fair trial 
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Case No. 23 MA 0019

even though each of the alleged instances of error do not individually 

constitute cause for reversal. State v. DeMarco, 31 Ohio St.3d 191, 509 

N.E.2d 1256 (1987). An error-free, perfect trial does not exist, and is not 

guaranteed by the Constitution. State v. Hill, 75 Ohio St.3d 195, 212, 661 

N.E.2d 1068 (1996). In order to find cumulative error, a record must contain 

multiple instances of harmless error. State v. Austin, 7th Dist. Mahoning No. 

16 MA 0068, 2019-Ohio-1185, ¶ 64. When an appellate court determines 

no error has occurred, the doctrine cannot apply. State v. Lyons, 7th Dist. 

Jefferson No. 16 JE 0008, 93 N.E.3d 139, 2017-Ohio-4385, ¶ 46.

State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶ 35.

As we find no error in any of Appellant’s assignments of error regarding his 

conviction, this assignment based on cumulative error clearly has no merit. Id.

Appellant’s fifth assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

THE PROSECUTOR COMMITTED A DUE PROCESS VIOLATION – AND 

THE TRIAL COURT ERRED IN ALLOWING A SENTENCE 

CONCORDANT WITH SAME – BY DISPROPORTIONATELY 

INCREASING THE SENTENCING RECOMMENDATION AFTER THE 

DEFENDANT’S DECISION TO EXERCISE HIS RIGHT TO A TRIAL, 

IMPLYING PROSECUTORIAL VINDICTIVENESS.

In his sixth assignment of error, Appellant claims the trial court violated his 

due process rights by imposing a harsher sentence in retaliation for exercising his right 

to a trial by jury, thereby implying vindictiveness.

“[T]here is no presumption of vindictiveness when, after trial, a court 

sentences a defendant to a longer term than was offered by the state in plea negotiations.” 

State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, ¶ 33. “The burden is on the 

defendant to show the judge acted vindictively.” Id. at ¶ 3. To determine whether there 

is evidence of actual vindictiveness, we must “review the entire record – the trial court’s 

statements, the evidence adduced at trial, and the information presented during the 
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Case No. 23 MA 0019

sentencing hearing[.]” Id. at ¶ 19. “We will reverse the sentence only if we clearly and 

convincingly find the sentence is contrary to law because it was imposed as a result of 

actual vindictiveness on the part of the trial court.” Id., citing R.C. 2953.08(G)(2); State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

Before trial, the State offered all three defendants, Appellant, Keith, and 

Anthony, a recommended term of incarceration of five to six years in exchange for 

pleading guilty. (11/28/2022 Trial by Jury Tr., p. 9). The State indicated “[t]hat offer is to 

the three of them and must be accepted by all three, or else the State is prepared to go 

to trial, to go forward with trial[.]” (Id. at p. 9-10). Appellant’s counsel stated Appellant 

was willing to individually accept that offer and asked the trial court to enforce the plea 

agreement. (Id. at p. 13).

The trial court found that because all three defendants did not accept the 

offer, “there has been no meeting of the minds as it relates to the potential Rule 11 

agreement.” (Id. at p. 18). The court concluded “that the State is not obligated to proceed 

with the text as it relates to the three plus two, so it’s going to be the ruling of this Court 

that we proceed to trial as to all three defendants[.]” (Id.) 

Again, following the trial by jury, Appellant was found guilty on count one 

(kidnapping), count two (abduction), count four (robbery), and count six (assault). At 

sentencing, the State recommended a 13-year total prison term. (1/4/2023 Sentencing 

Hearing Tr., p. 8). The State’s recommendation was based on the fact that Appellant 

committed the same crime twice. (Id. at p. 6).

Appellant’s prior criminal record includes a juvenile adjudication for 

kidnapping for which he was committed to the custody of the Department of Youth 

Services. (Id.) The facts at trial revealed that Appellant and Keith were the ringleaders, 

i.e., “the ones that initially abducted and kidnapped [the] victim.” (Id. at p. 7). Appellant 

“has experience in this type of crime [and has] demonstrated a willingness to commit the 

crime of kidnapping.” (Id.) Appellant “has a criminal record[,]” “was arrested while he 

was out on bond in this case[,]” and “has another charge pending.” (Id.) In fact, Appellant 

was later convicted of that offense. State v. Kyle Ellison, Mahoning County Case No. 

2022 CR 45. The trial court proceeded to concurrently sentence Appellant to five years 

(minimum) to seven and one-half years (maximum) in prison. (Id. at p. 41). 
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Case No. 23 MA 0019

The record as a whole does not show Appellant’s sentence resulted from 

actual vindictiveness on the part of the trial court. Rahab, supra, at ¶ 19. Rather, the 

record reveals Appellant’s sentence resulted from his prior criminal record, his 

participation in this crime compared to his co-defendants, and the impact of this crime 

upon the victim. Accordingly, Appellant’s sentence is not contrary to law. Id., citing R.C. 

2953.08(G)(2); Marcum, supra, at ¶ 1.

Appellant’s sixth assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Appellant’s assignments of error are not welltaken. The February 6, 2023 judgment of the Mahoning County Court of Common Pleas 

is affirmed.

Robb, P.J., concurs.

Hanni, J., concurs.
[Cite as State v. Ellison, 2024-Ohio-653.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.