[Cite as State v. Thornton, 2015-Ohio-289.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. CT2014-0035 

ERIC J. THORNTON : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. CR2013-0200 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: January 26, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN F. LITLE, III JOHN D. WEAVER 

27 North Fifth Street 542 South Drexel Avenue 

Suite 201 Bexley, OH 43209 

Zaneville, OH 43701 
Muskingum County, Case No. CT2014-0035 2 

Farmer, J. 

{¶1} On September 4, 2013, the Muskingum County Grand Jury indicted 

appellant, Eric Thornton, on one count of aggravated robbery in violation of R.C. 

2911.01, two counts of kidnapping in violation of R.C. 2905.01, and two counts of 

having a weapon under disability in violation of R.C. 2923.13. The aggravated robbery 

and kidnapping counts included firearm specifications. Said charges arose from an 

incident involving James Martin. Appellant was charged along with a co-defendant, 

Daniel Barnes, III. 

{¶2} A bench trial commenced on May 20, 2014. By decision filed May 22, 

2014, the trial court found appellant guilty of the aggravated robbery count, the 

kidnapping counts, and the firearm specifications, and not guilty of the weapon counts. 

By entry filed July 16, 2014, the trial court sentenced appellant to an aggregate term of 

twenty-three years in prison. 

{¶3} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶4} "APPELLANT'S CONVICTIONS FOR AGGRAVATED ROBBERY AND 

KIDNAPPING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND 

CONTRARY TO LAW." 

II 

{¶5} "THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO 

KIDNAPPING CONVICTIONS AND IN FAILING TO MERGE COUNT TWO AND 

COUNT ONE." 
Muskingum County, Case No. CT2014-0035 3 

III 

{¶6} "APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL." 

IV 

{¶7} "THE IMPOSITION OF CONSECUTIVE SENTENCES WAS CONTRARY 

TO LAW." 

I 

{¶8} Appellant claims his convictions for aggravated robbery and the two 

kidnappings were against the manifest weight of the evidence. We disagree. 

{¶9} On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175 (1st 

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The 

granting of a new trial "should be exercised only in the exceptional case in which the 

evidence weighs heavily against the conviction." Martin at 175. 

{¶10} Appellant was convicted of one count of aggravated robbery in violation of 

R.C. 2911.01(A)(1) and two counts of kidnapping in violation of R.C. 2905.01(A)(2) and 

(3) which state the following: 
Muskingum County, Case No. CT2014-0035 4 

[R.C. 2911.01] (A) No person, in attempting or committing a theft 

offense, as defined in section 2913.01 of the Revised Code, or in fleeing 

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

(1) Have a deadly weapon on or about the offender's person or 

under the offender's control and either display the weapon, brandish it, 

indicate that the offender possesses it, or use it; 

[R.C. 2905.01] (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: 

(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; 

{¶11} Appellant's convictions corresponded to the following counts of the 

indictment filed September 4, 2013: 

FIRST COUNT ...Eric J. Thornton did in attempting or committing 

a theft offense as defined in Section 2913.01 of the Revised Code, or in 

fleeing immediately after the attempt or offense, knowingly have a deadly 

weapon on or about their persons or under their control, to-wit, a .9 mm 

Glock with laser sight, and either displayed the weapon, brandished it, or 
Muskingum County, Case No. CT2014-0035 5 

indicated that they possessed it, or used it; in violation of Ohio Revised 

Code, Title 29, Section 2911.01(A)(1) and against the peace and dignity of 

the State of Ohio. 

SECOND COUNT ...Eric J. Thornton did by force, threat or 

deception, remove another, to-wit: James C. Martin, from the place where 

the other person, to-wit: James C. Martin, is found or restrain the liberty of 

the other person, to-wit: James C. Martin, to terrorize or to inflict serious 

physical harm on the victim, to-wit: James C. Martin; in violation of the 

Ohio Revised Code, Title 29, Section 2905.01(A)(3), and against the 

peace and dignity of the State of Ohio. 

THIRD COUNT ...Eric J. Thornton did by force, threat, or 

deception, removed another, to wit: James C. Martin, from the place 

where the other person, to-wit: James C. Martin, is found or restrain the 

liberty of the other person, to-wit: James C. Martin, to facilitate the 

commission of any felony, to-wit: Aggravated Robbery and/or Felonious 

Assault, or flight thereafter; in violation of the Ohio Revised Code, Title 29, 

Section 2905.01(A)(2), and against the peace and dignity of the State of 

Ohio. 

{¶12} At the conclusion of the testimony, the trial court found the following (T. at 

273, 274): 
Muskingum County, Case No. CT2014-0035 6 

The facts show that on June the 8th, 2013, Mr. James Martin had 

property stolen from him at gunpoint. The testimony of the amount and 

nature of the property was inconsistent, but the Court finds that the ring 

and earring found on the porch were Mr. Martin's and had been taken from 

him at gunpoint. 

*** 

The Court also finds that the victim, James C. Martin, was removed 

from the car and restrained of his liberty in order to terrorize and inflict 

serious physical harm by the Defendant, and was also done while the 

Defendant was armed with a firearm. This was done by threat with a 

firearm. 

{¶13} The facts support the trial court's findings. Mr. Martin and James Ricket 

were drinking at a bar and decided to change bars. T. at 23-24, 84-85. As they were 

leaving, Mr. Ricket asked Mr. Martin if he would give two guys a ride, known to Mr. 

Martin as "Fats and Louie," appellant and the co-defendant, Daniel Barnes, III, herein. 

T. at 25, 113. Appellant and the co-defendant wanted to be dropped off at a specific 

location (Cliffwood) on the way to the new bar. T. at 26. Mr. Martin was driving with 

appellant sitting behind him, and Mr. Ricket was in the passenger seat with the codefendant sitting behind him. T. at 26, 88, 114. When Mr. Martin arrived at the location, 

another vehicle was sitting at the light so the co-defendant told him to "go around the 

block." T. at 27, 89. After Mr. Martin went around the block and stopped the vehicle, 

appellant and the co-defendant pulled tight on the front seat belts and put a gun to each 
Muskingum County, Case No. CT2014-0035 7 

man's head. T. at 29-30, 90-91, 114. Mr. Martin emptied his pockets and placed the 

contents on the console. T. at 32, 55, 91. The co-defendant ended up with the 

contents. T. at 56, 76, 77, 92. Appellant then exited the vehicle, opened the driver's 

door, unbuckled Mr. Martin's seat belt, removed him from the vehicle, took him to the 

back of the car, and forced him at gun point to get in the trunk. T. at 32-33, 92, 114. 

Appellant then jumped in the driver's seat and when he started to pull away, Mr. Martin 

pulled the trunk release, jumped out, and ran away. T. at 33, 93, 114. The codefendant jumped from the vehicle, pursued appellant and caught up to him on the front 

porch of a residence. T. at 34, 93-94, 115. Mr. Martin and the co-defendant fought over 

the gun, and a gunshot went off, grazing Mr. Martin's head. T. at 34-37, 115. The codefendant started to drag Mr. Martin across the street, but Mr. Martin escaped and ran 

to a police car responding to the 911 call about the fight. T. at 37-38, 112, 115. The 

police described Mr. Martin as very distraught, scared, shaking, and vomiting after his 

escape. T. at 113, 116. 

{¶14} During the course of the evening, Mr. Martin lost his glasses, a watch, a 

ring, and an earring. T. at 38-40. All of the items were found either on the porch or the 

sidewalk, and a bullet casing was found on the sidewalk and a bullet hole was 

discovered to the home. T. at 120, 134, 164-166. Prints taken from the trunk and the 

driver's door were a match to appellant. T. at 174-176, 180-181. 

{¶15} A couple days later, appellant was being pulled over for a traffic violation 

when he stopped his vehicle and took off running. T. at 122-126. A gun was 

discovered in between some residences in the area where appellant had been running. 

T. at 127. The gun ballistically matched the gun that was fired during the fight with Mr. 
Muskingum County, Case No. CT2014-0035 8 

Martin. Id. In regards to the collection of the firearm which was connected to the 

incident involving Mr. Martin, there was a stipulation that appellant "had the firearm that 

night, left the vehicle, the firearm's found by the officer, and that's the firearm he had 

with him." T. at 128, 185. 

{¶16} Appellant testified and denied any threat, any use of a weapon, and any 

restraint of Mr. Martin. T. at 233, 240-241. 

{¶17} From our review of the record, we find sufficient credible evidence to 

support a restraint in the car, a use of a gun to obtain items from Mr. Martin while in the 

car, a restraint of Mr. Martin in the trunk, and a theft of Mr. Martin's car, all done by 

appellant. The facts all lead to proof beyond a reasonable doubt of appellant 

committing the crimes for which he is contesting, one count of aggravated robbery and 

two counts of kidnapping. We find no manifest miscarriage of justice. 

{¶18} Assignment of Error I is denied. 

II 

{¶19} Appellant claims the trial court erred in failing to merge Count 1 

(aggravated robbery) and Count 2 (kidnapping) as the restraint in Count 2 was "merely" 

incidental to Count 1. We disagree. 

{¶20} R.C. 2941.25 governs multiple counts and states the following: 

(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. 
Muskingum County, Case No. CT2014-0035 9 

(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. 

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

Supreme Court of Ohio held: "When determining whether two offenses are allied 

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the 

accused must be considered." The Johnson court explained the following at ¶ 48-50: 

In determining whether offenses are allied offenses of similar import 

under R.C. 2941.25(A), the question is whether it is possible to commit 

one offense and commit the other with the same conduct, not whether it is 

possible to commit one without committing the other. Blankenship, 38 

Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J., concurring) (“It is not 

necessary that both crimes are always committed by the same conduct 

but, rather, it is sufficient if both offenses can be committed by the same 

conduct. It is a matter of possibility, rather than certainty, that the same 

conduct will constitute commission of both offenses.” [Emphasis sic] ). If 

the offenses correspond to such a degree that the conduct of the 
Muskingum County, Case No. CT2014-0035 10 

defendant constituting commission of one offense constitutes commission 

of the other, then the offenses are of similar import. 

If the multiple offenses can be committed by the same conduct, 

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." Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 

50 (Lanzinger, J., dissenting). 

If the answer to both questions is yes, then the offenses are allied 

offenses of similar import and will be merged. 

{¶22} As clarified by the Supreme Court of Ohio in State v. Washington, 137 

Ohio St.3d 427, 2013-Ohio-4982, ¶ 24: "We hold that when deciding whether to merge 

multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire 

record, including arguments and information presented at the sentencing hearing, to 

determine whether the offenses were committed separately or with a separate animus." 

{¶23} As set forth above, Count 1 was the aggravated robbery count, Count 2 

was the kidnapping count for placing appellant in the trunk, and Count 3 was the 

kidnapping count to facilitate the robbery. The trial court properly merged Counts 1 and 

3. See, Entry filed July 16, 2014. As to the merger of Counts 1 and 2, the trial court 

stated the following during the sentencing hearing (July 10, 2014 T. at 5): 

In regards to Count 2, the Court finds that the robbery had been 

completed at the time the defendant was removed from the vehicle and 
Muskingum County, Case No. CT2014-0035 11 

placed into the trunk of the vehicle, which was not necessary in order to 

complete or facilitate the robbery. That showed an intent to commit some 

other further offense in this case up to, and including, possibly what 

happened later on, which ended up being a serious assault with a gun 

discharge, with those charges being filed against the co-defendant. 

Therefore, the Court finds that Counts 1 and 2 do not merge. You may 

proceed to make your arguments in regards to sentencing. 

{¶24} We concur with the trial court's analysis. As stated above, there were two 

restraints of Mr. Martin committed by appellant, the tightening of the seat belt with a gun 

to the head, causing Mr. Martin to remove items from his pockets, and the placing of Mr. 

Martin in the trunk at gunpoint. The robbery of Mr. Martin was complete before 

appellant placed him in the trunk. T. at 31, 92. There was no reason to place appellant 

in the trunk other than to "terrorize, or to inflict serious physical harm" to Mr. Martin. 

R.C. 2905.01(A)(3). Mr. Martin told police he feared for his life as "they were trying to 

kill him." T. at 116. The Count 2 kidnapping was committed with a separate animus 

from Counts 1 and 3. 

{¶25} Upon review, we find the trial court did not err in not merging Counts 1 and 

2. 

{¶26} Assignment of Error II is denied. 

III 

{¶27} Appellant claims he was denied the effective assistance of trial counsel 

because his counsel tried the case to the bench instead of a jury, and failed to use prior 
Muskingum County, Case No. CT2014-0035 12 

inconsistent statements to attack the credibility of Mr. Martin and Mr. Ricket. We 

disagree. 

{¶28} The standard this issue must be measured against is set out in State v. 

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant 

must establish the following: 

2. Counsel's performance will not be deemed ineffective unless and 

until counsel's performance is proved to have fallen below an objective 

standard of reasonable representation and, in addition, prejudice arises 

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) 

3. To show that a defendant has been prejudiced by counsel's 

deficient performance, the defendant must prove that there exists a 

reasonable probability that, were it not for counsel's errors, the result of 

the trial would have been different. 

{¶29} This court must accord deference to defense counsel's strategic choices 

made during trial and "requires us to eliminate the distorting effect of hindsight." State 

v. Post, 32 Ohio St.3d 380, 388 (1987). 

{¶30} Appellant testified and had a previous criminal history that would have 

been revealed during cross-examination and could have swayed a jury. July 10, 2014 

T. at 7. Trial judges are "presumed to consider only the relevant, material and 
Muskingum County, Case No. CT2014-0035 13 

competent evidence in arriving at a judgment unless the contrary affirmatively appears 

from the record." State v. Eubank, 60 Ohio St.2d 183 (1979). 

{¶31} The prior inconsistent statements of Mr. Martin and Mr. Ricket are clear to 

the trier of fact as they are in the record. 

{¶32} The trial court separated the firearm specifications from the weapon 

counts and found appellant not guilty of the weapon counts ("evidence does not prove 

beyond a reasonable doubt that said firearm on June 8, 2013 was a Glock 23, 9mm 

semi-automatic handgun with laser sight"), a nuance that a jury might not have 

perceived. See, Decision filed May 22, 2014. 

{¶33} Upon review, we find no deficiency by defense counsel that would have 

led to any different outcome given the substantial evidence presented against appellant 

on Counts 1, 2, and 3. 

{¶34} Assignment is Error III is denied. 

IV 

{¶35} Appellant claims the trial court erred in giving him consecutive sentences. 

We disagree. 

{¶36} R.C. 2929.14 governs prison terms. Subsection (C)(4) states: 

(4) If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the offender to 

serve the prison terms consecutively if the court finds that the consecutive 

service is necessary to protect the public from future crime or to punish 

the offender and that consecutive sentences are not disproportionate to 
Muskingum County, Case No. CT2014-0035 14 

the seriousness of the offender's conduct and to the danger the offender 

poses to the public, and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised 

Code, or was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or more of 

the multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶37} The trial court entered the following findings (July 10, 2014 T. at 7-8): 

Upon review of the presentence investigation, the Court will note for 

the record you have a prior criminal history, including an attempted 

robbery, in which you violated your probation three times before you were 

sent to prison on that. You have a prior conviction in 2013 of receiving 

stolen property, which was a firearm and weapon under disability, at which 

time you just completed that sentence, I believe, in May of this year. 
Muskingum County, Case No. CT2014-0035 15 

There is also trafficking in drugs, possession of drugs and weapon 

under disability, as well as another felony for two counts of trafficking in 

drugs. There are several domestic violences, and a child endangering 

also in your history. 

Based upon that, the Court will impose, in regards to the Count 1, a 

ten-year prison sentence, and Count 2, a ten-year prison sentence, and 

on the gun spec, a three-year mandatory sentence, which is required by 

law. The Court will order that the gun specification in Count 1 and 2 all be 

served consecutively to each other. 

The Court will also order that you be given credit for 90 days 

towards those sentences. The Court will also order that you pay the Court 

costs in this matter. The Court will also order that the restitution in the 

amount of $100 is due and owing to the victim in this case. 

The Court also makes the specific findings in this case that, given 

your prior criminal history and the nature of this case, that multiple prison 

terms are imposed and the Court may require the offender to serve the 

prison terms consecutively if the court finds that consecutive service is 

necessary to protect the public from future crime or to punish the offender, 

and that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger that the offender 

poses to the public; and also makes the specific findings that two or more 

multiple offenses were committed as part of one or more courses of 

conduct, and the harm caused by two or more of the multiple offenses so 
Muskingum County, Case No. CT2014-0035 16 

committed was so great or unusual that no single prison term for any of 

the courses of conduct adequately reflects the seriousness of the 

offender's conduct. 

The Court also finds from your criminal history that you 

demonstrate that consecutive sentences are necessary to protect the 

public from future crime. 

{¶38} We find the trial court properly considered the mandates of R.C. 

2929.14(C)(4). 

{¶39} Assignment of Error IV is denied. 

{¶40} The judgment of the Court of Common Pleas of Muskingum County, Ohio 

is hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Baldwin, J. concur 

 

 

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