[Cite as State v. Armstrong, 2024-Ohio-1277.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee/ :

Cross-Appellant, No. 112711

v. :

DARON ARMSTRONG, :

Defendant-Appellant/ :

Cross-Appellee.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; 

 AND REMANDED

RELEASED AND JOURNALIZED: April 4, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-652253-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Michael Lisk and Kristen Hatcher, Assistant 

Prosecuting Attorneys, for appellee/cross-appellant.

John F. Corrigan, for appellant/cross-appellee. 

ANITA LASTER MAYS, J.: 

Defendant-appellant/cross-appellee, Daron Armstrong (“Armstrong”),

and plaintiff-appellee/cross-appellant, the state of Ohio, appeal appellant’s 
conviction and sentence. We affirm in part, reverse in part, and remand for further 

proceedings pursuant to this opinion.

Armstrong was indicted on four counts on August 17, 2020. Count 1, 

rape, a first-degree felony under R.C. 2907.02(A)(2); Count 2, kidnapping, a firstdegree felony under R.C. 2905.01(A)(4); Count 3, kidnapping, a first-degree felony 

under R.C. 2905.01(A)(2); and Count 4, corrupting another with drugs, a fourthdegree felony under R.C. 2925.02(A)(1). The rape count carried a sexually violent 

predator motivation specification under R.C. 2941.148(A). The Count 2 kidnapping 

charge carried under-the-age-of-18, sexual motivation, and sexually violent 

predator specifications, R.C. 2941.147(A) and 2941.148(A). The Count 3 kidnapping 

charge carried the latter two specifications. The sexually violent predator 

specifications were dismissed by the state prior to trial. 

Armstrong pleaded not guilty to the charges. Trial commenced on 

January 30, 2023. On February 9, 2023, the jury found Armstrong not guilty of 

Counts 1 and 4, rape and corrupting another with drugs, and Armstrong was 

convicted of both kidnapping counts. The sexual motivation specifications were 

tried to the bench, which found Armstrong guilty. 

On April 3, 2023, prior to sentencing, the trial court addressed 

Armstrong’s motions for judgment of acquittal or for a new trial filed February 14, 

2023. Armstrong argued that there was no evidence of threat or force supporting 

Counts 2 and 3 of the kidnapping convictions and that the stated purposes under 
Count 3 were to commit rape and/or corrupting another with drugs for which the 

jury found Armstrong not guilty. The motions were denied. 

The parties agreed that the kidnapping charges merged, and the state 

elected to sentence on Count 2 that carried a range of three to 11 years, plus an 

indefinite term under the Reagan Tokes Law. The kidnapping conviction and the

sexual motivation specification conviction were subject to a Tier III sexual offender

designation. Armstrong was sentenced to a minimum prison term of eight years and 

a maximum term of 12 years on the underlying offense, declared to be a Tier III sex 

offender, and was awarded jail-time credit for 730 days to date. 

Trial 

Jane Doe (“Doe”), 17 years old at the time of trial, testified that she 

was 14 years old when the incident occurred. The family resided in the Union Avenue 

area on the east side of Cleveland prior to moving to the adjacent Kinsman-Buckeye 

area. On Sunday evening, November 3, 2019, Doe returned home from a friend’s 

house and argued with her mother. Upset, Doe left to visit friend Mary X (“Mary”) 

several blocks away. Doe was walking along East 124th Street toward East 127th

Street near Buckeye Road, south of Dave’s Supermarket on Shaker Square, when an 

older white Cadillac began slowly following her. 

The car pulled up beside her, and the driver told Doe to get in. Doe 

complied because she was afraid of being injured though the driver did not threaten 

her or brandish a weapon. Doe entered the back seat of the car behind the driver

that she said was cluttered with clothing, papers, and other items. Doe did not know 
the driver and had never seen him before. She later identified Armstrong in a 

photographic lineup. 

Armstrong took Doe to several places where people would enter the 

car to purchase drugs from him. Based on signs she observed, Doe believed they

visited the greater Cleveland, Bedford, and Euclid areas. Armstrong would 

occasionally smoke a marijuana cigarette, and “a couple of times he tried to give it”

to her. “He kept asking” and at one point handed one to her. Doe blew the smoke 

out but did not inhale it. Tr. 497.

During the incident, Armstrong asked Doe her name and age and told 

her he would kill her if she talked with any of the people they encountered. The next 

morning at approximately 6:00 a.m., Armstrong pulled into the driveway behind an 

apartment complex with “whitish” colored buildings in the Buckeye-Woodland area

and climbed between the seats into the back seat of the car. 

Doe eventually removed her shirt as Armstrong instructed but 

refused to remove her shorts and leggings. Armstrong caused a tear in the leggings 

when removing them. Doe said that Armstrong penetrated her vaginally while 

wearing a condom. The interaction continued for 30 to 45 minutes during which 

Armstrong warned her to stop moving or he would kill her. 

Armstrong subsequently climbed back into the front seat, made 

phone calls and additional stops. Doe stated she could have exited the car when

Armstrong pulled into a driveway and entered a house for almost an hour, but she 

was not sure of her location. Tr. 486. Armstrong returned to the car and smelled 
like he “got in the shower, like fell asleep or something.” Tr. 486. Doe could not call 

anyone because her broken cell phone was at home. She felt “tired,” “defeated” and 

“traumatized.” Tr. 484. 

Doe said she had memory lapses about portions of the incident but 

recalled that the driver mentioned a party while talking on the phone on Monday 

evening. At about 8:30 p.m., Armstrong left Doe in the car while he stopped at a 

liquor store in the Union Avenue area, but she did not attempt to escape. Shortly 

thereafter, at approximately 9:00 p.m., the driver pulled the car over and said, 

“[T]his is your stop.” Tr. 487. 

Doe walked to Mary’s house. She did not want to talk about what 

happened because she was in shock and told Mary she had passed out in a field. Doe 

left Mary’s and was picked up by her brother who took her home. She was 

transported to the hospital by EMS but did not recall telling anyone what happened 

to her. Doe returned home and was unable to sleep, shower, eat, or get out of bed. 

Members of the Cleveland Police Department (“CPD”) went to the house and 

obtained the clothes that she was wearing. 

The next day, Doe told her mother about the sexual assault and was 

transported by EMS a second time. Doe told EMS and hospital personnel about the 

incident and met with the police two days later. 

Doe testified she recognized Armstrong in the first photo lineup 

presented to her in 2020 but did not identify him until 2022 out of fear of retaliation 

toward her or her family. Doe did not see any identifying information among the 
car clutter. Tr. 542. They did not stop for gas, food, or restrooms (she used an empty 

water bottle for toileting), and Doe did not sleep or leave the car during the almost 

24-hour period.

The defense emphasized conflicts between Doe’s testimony and 

statements to police. Doe said her statement to CPD officer Natera on November 5, 

2019, that Armstrong never asked her name or age and “all he called me was girl”

was in error because Armstrong did inquire. Tr. 583. Doe also told police that she 

did not look at Armstrong during the entire period and did not identify him in a 

photo array until refreshing her recollection before trial though Doe also testified 

the delayed identification was due to fear. Doe also told EMS that Armstrong drove 

to the Bedford area on Monday, which conflicted with her statement to CPD Officer 

Natera that they went to a house on East 123rd Street that they had stopped at the 

prior day. 

The defense continued to address discrepancies between Doe’s 

statement to the police and her trial testimony. Testimony was also elicited that

around the time of the incident, Doe had stopped taking her mental health 

medication and her mother had urged her to go to the hospital for crisis 

intervention. Tr. 538. 

Doe told police that Armstrong had a tattoo “sleeve” on his left arm

that included red ink in the design. Armstrong revealed his arms at trial. There 

were no tattoos on the left arm and the right arm had a tattoo on the upper bicep. 
There was no red in the tattoo. Doe also did not recall other events contained in her 

statement to police. 

Doe’s mother (“Mother”) testified that the evening of the incident, 

Doe was upset with the hairstyle she received from a friend’s aunt earlier that day 

and that her cell phone was broken. Doe did not want to go to school the next day, 

she and Mother exchanged words, and Doe left the house. Mother went to bed about 

10:00 p.m. and learned of Doe’s truancy when contacted by the school the next 

morning. Doe had never run away before. Mother was concerned that Mary was 

secreting Doe and checked Mary’s house before going to juvenile court to file an 

unruly child report. Mother also filed a missing person’s report and enlisted 

assistance from friends and social media. 

Mary contacted Mother when Doe arrived at her home and did not 

want to talk about what happened. Mother and Doe’s brother picked up Doe who 

was walking home. Police and EMS arrived and took Doe to the hospital, but Doe 

would not speak with anyone. The next morning, Doe confirmed to Mother that she 

had been hurt and EMS returned Doe to the hospital where Doe disclosed the 

information underlying the indictments. 

Former CPD police officer Natera met with Doe at her home and at 

the hospital. The officer testified about the contents of her report: 

[W]hat she said had occurred is she and her mother had gotten into an

argument. She then left the house to go to her friend’s house. While 

she was en route to the friend’s house on foot a vehicle that she 

described as a — like a long white car, I guess, slow rolled beside her 

and then a voice told her to get into the car. She was frightened and 
complied. And then for the majority of the evening was being driven 

around by this individual who was doing drug sales in like different 

locations. 

And then sometime approximately six a.m. he parked and, you know, 

crawled into the backseat and proceeded to tell her to take her clothes 

off. And when she hesitated, he said, I’ll kill you, so she complied, 

except for the leggings. He ripped off the leggings. And then she — she 

was also made to smoke something, but she doesn’t know what it was 

or at least at the time didn’t know.

Anyway, after the assault he pretty much drove a little bit, dropped her 

off, and told her, I’ll see you around or something, and drove off.

Tr. 801-802. 

The officer also stated:

[S]he told me that the suspect was a black man with a deep voice and 

about chin length black dreadlocks. She said he was somewhere 

between five nine and five ten. She couldn’t remember exactly. But she 

compared his height to a friend of hers. * * * She also said that he had 

a sleeve tattoo. 

Tr. 802. Doe indicated that the tattoo was on his left arm and said she never looked 

at Armstrong’s face. Tr. 821. 

Sexual Assault Nurse Examiner (“SANE”) Hackett conducted the 

sexual assault evaluation exam commonly known as the rape kit. Nurse Hackett 

read a portion of the history provided by Doe for the jury: 

It was about 10:00. Me and my mother got in [a] disagreement. I 

stormed out of the house. 

I was going to my — I was going to go to my friend’s on 128th Street. As 

I was walking on 124th, near Wendy’s, I went back — I went the back 

way. I heard a car engine and I turned around and saw an old white —

that’s actually Cadillac. And then I started walking faster. And I started 

running. He said out the window, stop running, so I stopped because I 

thought he had a gun or a knife. Then he told me to get in the car. I 

stood there. He told me louder to get in the car, so I got in the car. * * * 
I sat in the backseat and he drove me to different houses selling cocaine 

and I was sitting in the backseat. Again, in quotation she goes on, after 

a few hours he pulled into this driveway and he was on his phone for an 

hour. I saw the time and it was — the time on his phone, it was like 6:00 

in the morning.

He climbed in the backseat he told me to take off my hoody. He told me 

to take off my shirt. I didn’t want to, but he said take off your shirt 

before I kill you. I took off my shirt. * * * 

He told me to take off my leggings. Then he raped me. He kept getting 

mad because I was moving and he kept holding me down.

Tr. 882-883. Doe stated that Armstrong stopped when he ejaculated “in his 

condom.” Tr. 886. 

Doe also told Nurse Hackett that Armstrong stopped at a house on 

Union Avenue, “showered or something, [and] drove around selling cocaine.” Tr. 

883. “Then his friend called him to go out to a bar and then he dropped me off to 

126th Street and said this is where you get out. I walked to my friend’s house, and 

she said people was looking for me.” Tr. 884. Doe said she feared Armstrong might 

have had a gun or knife. 

Nurse Hackett did not observe markings on the back of Doe’s neck 

substantiating her statement that Armstrong held her by the back of her neck. The 

nurse took DNA swabs of areas Doe said Armstrong touched including her neck and 

stomach, and performed a genital exam that did not provide evidence of injury. The 

nurse did not use an alternative light source to help identify body fluids. Tr. 925. 

Doe informed the nurse that Armstrong never forced her to use drugs or alcohol and 

that she was not having issues with memory loss so that she could not recall what 

occurred. Tr. 931.
DNA analyst Gerald Furniss of the Regional Forensic Science Office 

of the Cuyahoga County Medical Examiner’s Office analyzed Doe’s sexual assault 

evidence kit and clothing. No seminal DNA was matched to Armstrong. Furniss 

confirmed that epithelial DNA is produced from “sweat, tears, touching, things like 

that” and “we are all shedding cells when we touch stuff.” No tests were conducted 

on Doe’s sweatshirt or tank top. Armstrong’s epithelial cells were found on a single 

sample from Doe’s leggings but on no other items. The clothing collected from Doe 

was placed in a single bag. The DNA could have been transferred directly or from 

another item or surface.

CPD Detective Tusing (“Det. Tusing”) worked with the sex crimes and 

child abuse unit at the time of the incident. He and Det. Crosby interviewed Doe 

within two or three days of the incident and again a few days later after receipt of 

the zone car officer’s incident report. Doe described Armstrong as having 

dreadlocks, 5 feet 9 inches to 5 feet 10 inches in height, with a tattoo that included 

the color red. 

The detective did not check area residences or businesses for video 

recordings of the white car described by Doe. He contacted the CPD’s Real Time 

Crime Center (“RTCC”) seeking video recordings from cameras located on Cleveland 

streets but did not receive a response. 

Det. Tusing discovered a few apartment complexes that “could have”

been where the alleged rape occurred but was not sure and did not take pictures. He 

also identified a liquor store in the area that Doe described but did not check to see 
if the store had security videos or to see whether there were other stores in the 

immediate area. Det. Tusing was unable to locate the house where Armstrong 

reportedly stopped to shower or rest. Armstrong’s cell phone records were not 

subpoenaed because the cell phone providers do not keep records for more than a 

few months, and the cell phone information was not obtained until August 2020. 

A video of Armstrong’s custodial interview conducted August 26, 

2020, was played for the jury. A review of the video reveals that Armstrong said he 

did not recall picking anyone up the day of the incident or forcing anyone into his 

car and did not think he had a vehicle at that time. The detective informed 

Armstrong that he was arrested because his DNA was found in the rape kit, but 

Armstrong insisted that he was innocent. 

Sergeant Brian Williams (“Sgt. Williams”) with the Cuyahoga County 

Sheriff’s Office was employed as an administrator of the jail-call system. Calls are 

tracked by inmate account number and name and accessed by an inmate’s unique 

PIN. Sometimes inmates traded PIN numbers and sometimes used another’s PIN 

without permission. The call detail report for Armstrong’s account covered the 

period of July 6, 2020, to January 28, 2023, for a total call time of 23 hours and 59 

seconds. A second call detail list under the name Malik Shabazz for the period July 

1, 2022, to July 31, 2022, was also identified. 

The call lists included a number in common. The jail call to that 

number from each account was played for the jury. This court’s review revealed that 

the July 28, 2022 audio recording contained a male voice and a female voice 
discussing the victim’s name and allegations. The July 29, 2022 audio recording

between a male and female discussed looking for “her” on Facebook and that she 

wore braces. The sergeant did not have actual knowledge of the identities of the 

individuals in the recordings. There were no other questions by the state or defense 

regarding the audio contents. 

The state rested. Armstrong’s Crim.R. 29 motion for judgment of 

acquittal was denied. The defense rested and the renewed motion for acquittal was 

also denied. 

Appellant appeals. The state cross-appeals. 

Direct appeal

Armstrong assigns two errors on appeal: 

I. Appellant’s kidnapping convictions in Counts 2 and 3 were not 

supported by legally sufficient evidence as required by state and federal 

due process. 

II. Appellant’s convictions were against the manifest weight of the 

evidence. 

Discussion 

We combine the assigned errors for ease of analysis. 

Standard of Review

“Crim.R. 29 mandates that the trial court issue a judgment of 

acquittal where the state’s evidence is insufficient to sustain a conviction for an 

offense.” State v. Hoskin-Hudson, 8th Dist. Cuyahoga No. 103615, 2016-Ohio-5410, 

¶ 7. “[A]n appellate court reviews a trial court’s denial of a defendant’s motion for 
acquittal using the same standard it applies when reviewing a sufficiency-of-theevidence claim.” Id. 

“‘Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the jury verdict.’” State v. McFarland, 162 Ohio St.3d 36, 

2020-Ohio-3343, 164 N.E.3d 316, ¶ 23, quoting State v. Smith, 80 Ohio St.3d 89, 

113, 684 N.E.2d 668 (1997). 

“‘[W]hen reviewing the sufficiency of the evidence to support a 

criminal conviction’” the function of an appellate court “‘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.’” Id. at ¶ 24, 

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

the syllabus, superseded by constitutional amendment on other grounds, Smith at 

102, fn. 4. “‘[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. (Jackson v. 

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), followed.)’” Id., 

quoting id. 

In contrast to an appellate court’s sufficiency of the evidence inquiry 

of whether the state met its burden of production at trial, a manifest weight of the 

evidence inquiry asks whether the state met its burden of persuasion. State v. 

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring.) 
In conducting a manifest weight inquiry, a reviewing court “‘weighs the evidence 

and all reasonable inferences, considers the credibility of witnesses and determines 

whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and 

created such a manifest miscarriage of justice that the [judgment] must be reversed 

and a new trial ordered.’” Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 

175, 485 N.E.2d 717 (1st Dist.1983). 

When “weighing the evidence, the court of appeals must always be 

mindful of the presumption in favor of the trier of fact.” Id., citing Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. Thus, an 

appellate court will overturn a conviction due to the manifest weight of the evidence 

only in extraordinary circumstances where the evidence presented at trial weighs 

heavily against the conviction. Thompkins at 388. 

Analysis

Armstrong challenges the convictions for the kidnapping counts. 

Count 2 of the indictment charged under R.C. 2905.01(A)(4) that Armstrong “did, 

by force, threat, or deception, purposely remove Jane Doe from the place where she 

was found or restraining the liberty of her for the purpose of engaging in sexual 

activity, as defined in Section 2907.01 of the Revised Code, with Jane Doe against 

her will.” “Furthermore, and the victim of the offense is under eighteen years of age.”

“[T]he offender committed the offense with a sexual motivation.” R.C. 2941.147(A). 

Also, Armstrong “is a sexually violent predator.” R.C. 2941.148(A). 
The indictment for Count 3, R.C. 2905.01(A)(2), provided that 

Armstrong, “did, by force, threat, or deception, purposely remove Jane Doe from the 

place where she was found or restrain the liberty of her for the purpose of facilitating 

the commission of a felony to wit: Rape [R.C.] 2907.02 and/or corrupting another 

[R.C.] 2925.02 or flight thereafter.” The count includes the same specifications

except for the under-the-age-of-18 specification.1 

The following exchange took place on the record regarding merger of 

the kidnapping convictions: 

State: Yes, one more matter before we proceed, Your Honor. In looking 

at Counts Two and Three the state would agree that those counts would 

merge, your Honor. The state would elect on Count Two a violation of 

(A)(4) kidnapping, felony of the first degree, punishable by three to 11, 

Your Honor, the sexual motivation language on Count Three which he 

was found guilty of in addition to the under 18 [years of age] 

furthermore language of Count Two, I think I may have said Count 

Three, of Count Two, Your Honor.

What those do is they enhance the registration requirements so that 

this is a tier three sex registration, Your Honor.

Court: Do you agree, Mr. Kucharski?

Counsel: Unfortunately, I do, Your Honor.

Tr. 1385-1386. 

As to Count 3, this court has held that “[a] defendant cannot challenge 

a conviction that was merged because ‘[t]he counts that merged with the [count of] 

conviction are not convictions, and therefore, we cannot individually review the 

1 The sexually violent predator specifications were dismissed from the kidnapping 

counts prior to trial.
evidence supporting those findings of guilt.’” State v. Banks, 8th Dist. Cuyahoga No. 

108166, 2020-Ohio-3029, ¶ 23, quoting State v. Worley, 8th Dist. Cuyahoga No. 

103105, 2016-Ohio-2722, ¶ 23, State v. Pollard, 8th Dist. Cuyahoga No. 110008, 

2021-Ohio-2520, ¶ 15. 

“For the purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty 

verdict and the imposition of a sentence or penalty.”’ (Emphasis sic.). 

Banks cannot challenge a conviction that does not exist. See id. (“The 

counts that merged with the [count of] conviction are not convictions, 

and therefore, we cannot individually review the evidence supporting 

those findings of guilt.”).

Banks at ¶ 23, quoting Worley at ¶ 23.

Thus we focus on Count 2. According to R.C. 2905.01(A)(4):

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

under the age of thirteen or mentally incompetent, by any means, 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: * * * 

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

Revised Code, with the victim against the victim’s will. 

R.C. 2907.01(C) defines “sexual activity” as “sexual conduct or sexual 

contact, or both.” 

(A) “Sexual conduct” means vaginal intercourse between a male and 

female; anal intercourse, fellatio, and cunnilingus between persons 

regardless of sex; and, without privilege to do so, the insertion, 

however slight, of any part of the body or any instrument, 

apparatus, or other object into the vaginal or anal opening of 

another. Penetration, however slight, is sufficient to complete 

vaginal or anal intercourse.

(B) “Sexual contact” means any touching of an erogenous zone of 

another, including without limitation the thigh, genitals, buttock, 

pubic region, or, if the person is a female, a breast, for the purpose 

of sexually arousing or gratifying either person. 
R.C. 2907.01(A)-(B). 

The jury was instructed that to find Armstrong guilty of rape under 

Count 1, it must find that Armstrong “did engage in sexual conduct, to-wit: vaginal 

penetration with Doe, by purposely compelling her to submit by force or threat of 

force.” Tr. 1331. The trial court instructed on the related terms including purpose.

A person acts purposely when it is his specific intention to cause a 

certain result. It must be established in this case that at the time in 

question there was present in the mind of defendant a specific intention 

to compel Doe to submit by force or threat. * * * 

A purpose is a decision of the mind to do an act with a conscious 

objective of producing a specific result or engaging in specific conduct. 

To do an act purposely is to do it intentionally and not accidentally. 

Tr. 1332. The jury found Armstrong not guilty of rape. 

The jury was instructed as to Count 4 “that a finding of guilt must be 

based on determining that the defendant did knowingly by force, threat, or 

deception, administer to another or induce or cause another to use” marijuana. Tr. 

1339. The jury found Armstrong not guilty. 

The jury was also advised:

You must consider each count and the evidence applicable to each 

count separately, and you must state your findings as to each count 

uninfluenced by your verdict on any other count. The defendant may 

be found guilty or not guilty of none, some, or all of the offenses 

charged. 

Tr. 1329.

On Count 2 kidnapping, the trial court instructed that the jury must 

find that Armstrong “did by force, threat, or deception purposely remove Doe from

the place where she was found or restrained the liberty of her for the purpose of 
engaging in sexual activity with Doe against her will.” Tr. 1334. The jury was also 

advised that the definition of purpose and force were the same as those given for the 

rape charge. 

A person acts purposely when it is his specific intention to cause a 

certain result. It must be established in this case that at the time in 

question there was presentin the mind of defendant a specific intention

to compel Doe to submit by force or threat. 

What about conduct? When the central idea, essence or gist of the 

offense is a prohibition against or forbidding conduct of a certain 

nature, a person acts purposely if his specific intention was to engage 

in conduct of that nature, regardless of what he may have intended to 

accomplish by his conduct.

A purpose is a decision of the mind to do an act with a conscious 

objective of producing a specific result or engaging in specific conduct. 

To do an act purposely is to do it intentionally and not accidentally.

Purpose and intent mean the same thing. The purpose with which a 

person does an act is known only to himself unless he expresses it to 

others or indicates it by his conduct.

How should you determine this? The purpose with which a person does 

an act or brings about a result is determined from the manner in which 

it is done, the means or weapon used, and all the other facts and

circumstances in evidence.

Compel means to force by the use of force or the threat of force, duress,

or coercion of any kind.

Force simply means any violence, compulsion, or constraint physically 

exerted by any means upon or against a person or thing.

A threat means a direct or indirect threat.

Tr. 1332-1335. 

“R.C. 2905.01(A)(4) prohibits the removal or restraint of another for 

the purpose of engaging in sexual activity with the person and ‘requires only that the 
restraint or removal occur for the purposes of non-consensual sexual activity — not 

that sexual activity actually take place.”’ Worley, 164 Ohio St.3d 589, 2021-Ohio2207, 174 N.E.3d 754, at ¶ 61, quoting State v. Powell, 49 Ohio St.3d 255, 262, 552 

N.E.2d 191 (1990), superseded by constitutional amendment on other grounds,

Smith, 80 Ohio St.3d at 102, 684 N.E.2d 668, fn. 4, and following Jackson, 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

In this case, the jury was not convinced that a rape occurred or that 

Armstrong forced Doe to consume marijuana or alcohol. Thus, the issue is whether 

the evidence supported that Armstrong restrained or removed Doe with the 

“purpose” of engaging in nonconsensual sexual activity.

Doe testified that Armstrong slowly drove up slowly behind her, to 

her left. He never showed a weapon, made a threat, or attempted to get out of the 

car. He simply told her to “get in.” Tr. 531. The front passenger side window was 

down. Doe did not observe Armstrong reach over to unlock the passenger’s side of 

the older four-door vehicle as it was unlocked when she entered, but also stated she 

entered the back seat behind the driver. Defense counsel asked: “And he made no 

threats to you whatsoever, hasn’t used force or deception, saying I’ve got something 

in here for you, right?” Tr. 533. Doe responded, “no.” During the entire almost 24-

hour period, Doe did not attempt to exit the vehicle or seek assistance, even when 

Armstrong entered a residence for approximately 45 minutes. Doe explained that 

she remained because she was afraid. 
It is true that there are conflicts between Doe’s testimony and the 

statements made to police, but there are also consistencies. Doe was 14 years of age 

in November 2019, and the trial took place in January 2023. A “jury is free to believe 

or disbelieve all or part of any witness’s testimony.” State v. Taylor, 8th Dist. 

Cuyahoga No. 90044, 2008-Ohio-2663, ¶ 23, citing State v. Antill, 176 Ohio St. 61, 

67, 197 N.E.2d 548 (1964). The jury chose not to believe the elements of the rape 

count that were established, nor did they believe that Armstrong caused Doe to 

indulge in marijuana use. However, the jury did find that the kidnapping took place 

for the purpose of sexual activity. Based on a thorough review of the record, this 

court cannot say that the evidence was insufficient or the convictions were against 

the manifest weight of the evidence. 

The first and second assignments of error are overruled. 

Cross-Appeal

The state assigns two cross-assignments of error.

2 According to the 

record, Armstrong did not respond; however, Armstrong was permitted to address 

the assigned errors at oral argument. 

I. The trial court’s sentence was contrary to law because it failed to 

properly impose an indefinite term of incarceration. 

II. The trial court failed to calculate the appropriate jail-time credit 

as required by R.C. 2929.19. 

2 This court granted the state’s motion for leave to file the cross-appeal on June 22, 

2023. The state’s right to appeal is set forth under R.C. 2945.67, which provides that, with 

the exception of final verdicts, the state may appeal any other decision in a criminal 

matter by leave of court. 
Discussion

Standard of Review

We review felony sentences under the standard set forth in R.C. 

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 

1231, ¶ 16.

R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a 

reviewing court may overturn the imposition of consecutive sentences 

where the court “clearly and convincingly” finds that (1) “the record 

does not support the sentencing court’s findings under R.C. 

2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.”

State v. Henderson, 8th Dist. Cuyahoga Nos. 106340 and 107334, 2018-Ohio-3168, 

¶ 15.

Analysis

Contrary to law

The record reflects at the sentencing hearing that the trial court failed 

to announce a minimum and maximum sentence pursuant to Reagan Tokes. 

Instead, the trial court imposed an eight-year term. The journal entry provides: 

The court considered all required factors of the law. 

The court finds that prison is consistent with the purpose of 

R.C. 2929.11. 

The court imposes a minimum prison term of 8 year(s) and a maximum 

prison term of 12 year(s) on the underlying offense(s) at the Lorain 

Correctional Institution. 

Count(s) 3 merge into Count 2. State elects to proceed as to Count 2, 

[felony one]: a prison term of 8 year(s); a mandatory minimum 2 years, 

up to a maximum of 5 years post release control. 

The state agrees the counts merge. * * * 
Reagan Tokes advisory given. Defendant’s objection [to] the law is 

hereby overruled.

Journal entry No. 144109995, (Apr. 13, 2023) p. 1. 

The sentence is reversed and remanded to the trial court to properly 

impose and journalize the sentence pursuant to law. The first cross-assignment of 

error is sustained. 

Jail-time Credit

The state argues the trial court failed to calculate the appropriate jailtime credit as required by R.C. 2929.19. We sustain the assigned error for the 

reasons set forth below.

Standard of Review

‘“An error in the computation of jail-time credit is subject to review 

under R.C. 2953.08(G)(2).’” State v. Jones, 8th Dist. Cuyahoga No. 110412, 2021-

Ohio-4175, ¶ 9, quoting State v. Hearn, 6th Dist. Erie Nos. E-19-067, E-19-076, E19-077, and E-19-078, 2021-Ohio-86, ¶ 6. See also State v. Williams, 8th Dist. 

Cuyahoga No. 104155, 2016-Ohio-8049, ¶ 10. ‘“An appellate court may increase, 

decrease, modify, or vacate and remand a disputed trial court sentence if it clearly 

and convincingly is demonstrated that either the record of evidence does not 

support applicable statutory findings or the sentence is otherwise contrary to law.”’

Id., quoting Hearn at ¶ 6, citing R.C. 2953.08(G)(2).

Analysis

 In the instant case, the trial court inquired: 
Court: What jail credit is your client now entitled to [counsel]?

Counsel: I’m not aware of the exact calculation, Your Honor. 

Court: Would you like to have a word with your client now?

(Thereupon, a discussion was had off the record.)

Counsel: He believes he should be credited 18 months, Your Honor. 

He believes he has two years total, Your Honor. He has another six 

months from coming in and out of jail on all those [other] cases. 

Court: Two years would be 730 days. Does the state concur or have a 

different figure in mind? 

State: No, I would not take Mr. Armstrong at his word, Your Honor. I 

would request to be able to calculate that subsequently after the hearing 

and provide the Court with our calculation. 

Tr. 1384. 

The trial court advised both sides to be prepared with jail-time credit 

figures in mind in the future. 

For the moment I will give the defendant a 730-day credit. The state 

may by written motion move to have that figure reduced or you can add 

to that if that is where the facts lead them, understood? 

State: Yes, Your Honor. 

Tr. 1384. The defense was also invited to advise the court if it came up with a 

different figure. The court asked both sides to provide their calculations by April 10, 

2023. 

‘“The practice of awarding jail-time credit, although now covered by 

state statute, has its roots in the Equal Protection Clauses of the Ohio and United 

States Constitutions.”’ Williams, 8th Dist. Cuyahoga No. 104155, 2016-Ohio-8049, 

at ¶ 12, quoting State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 
440, ¶ 7. “The rationale for giving jail-time credit ‘is quite simple[;] [a] person with 

money will make bail while a person without money will not.’” Id., quoting id. at 

¶ 25.

R.C. 2929.19 governs the trial court’s responsibilities at sentencing 

hearings. R.C. 2929.19(B)(2)(g)(i) provides that “[i]t is the duty of the trial judge to 

determine the amount of jail-time credit to which a prisoner is entitled.” State v. 

Williams, 8th Dist. Cuyahoga No. 105903, 2018-Ohio-1297, ¶ 14, citing State ex rel. 

Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 

1286, ¶ 7. “In making a determination under division (B)(2)(g)(i) of this section, the 

court shall consider the arguments of the parties and conduct a hearing if one is 

requested.” (Emphasis added.) R.C. 2929.19(B)(2)(g)(ii). 

Subsequently,

[t]he sentencing court retains continuing jurisdiction to correct any 

error not previously raised at sentencing in making a determination 

under division (B)(2)(g)(i) of this section. The offender may, at any 

time after sentencing, file a motion in the sentencing court to correct 

any error made in making a determination under division (B)(2)(g)(i) 

of this section, and the court may in its discretion grant or deny that 

motion. If the court changes the number of days in its determination or 

redetermination, the court shall cause the entry granting that change 

to be delivered to the department of rehabilitation and correction 

without delay. Sections 2931.15 and 2953.21 of the Revised Code do not 

apply to a motion made under this section. 

State v. Norris, 7th Dist. Monroe No. 14 MO 7, 2014-Ohio-5833, ¶ 20, quoting 

R.C. 2929.19(B)(2)(g)(iii). 

The state offers that it was the trial court’s duty to calculate jail-time 

credit. The state also asserts the trial court’s order that the state file a motion within 
seven days if it deemed the figure to be incorrect is not permitted by law. While the 

state presents its jail-time calculation in the appellate brief, the state argues that the 

law does not allow the state to file a motion in the sentencing court to correct jailcredit calculation errors — only the prisoner. R.C. 2929.19(B)(2)(g)(iii). We do not 

find that R.C. 2929.19(B)(2)(g)(iii) is implicated here. 

It appears from the record that there was more than one case pending 

during the years the instant case was pending, which may have served as the basis 

for seeking input from the parties. R.C. 2929.19(B)(2)(g)(ii) empowers the trial 

court to entertain arguments from the parties to reach a determination of the jailtime credit entitlement and to conduct a hearing if a hearing is requested. The trial 

court requested input from the parties and it “determine[d] the amount of jail-time 

credit to which” Armstrong was entitled. R.C. 2929.19(B)(2)(g)(i). The parties were 

instructed to submit calculations for consideration if they disagreed with the trial 

court’s determination based on the only information submitted. The state chose not 

to comply. 

A prisoner has the constitutional right to receive credit for the period 

of commitment during which the prisoner was unable to afford bail. See Fugate, 117 

Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, at ¶ 7. The sentence is reduced 

“by the total number of days that the prisoner was confined for any reason arising 

out of the offense for which the prisoner was convicted and sentenced.” R.C. 

2967.191(A). However, a prisoner is not entitled to a windfall, and based on a 

cursory review of the record, it appears that Armstrong may have been granted more 
time than permitted. In light of this court’s reversal of the sentence and remand for 

resentencing, the computation of jail-time credit shall be addressed at resentencing,

and the parties shall submit the information if properly requested by the trial court 

under R.C. 2929.19(B)(2)(g)(ii). 

The second cross-assignment of error is sustained. 

Conclusion

We affirm appellant’s convictions, reverse the sentence, and remand 

for the limited purpose of resentencing consistent with this opinion. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. 

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

of the Rules of Appellate Procedure.

______________________

ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

LISA B. FORBES, J., CONCUR