[Cite as State v. Singh , 2021-Ohio-2158.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

DALVIR SINGH, Appellant. :

:

:

:

:

: CASE NO. CA2020-09-056

O P I N I O N

6/28/2021

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 19CR35493

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Anzelmo Law, James A. Anzelmo, 446 Howland Drive, Gahanna, Ohio 43230, for appellant

PIPER, P.J. {¶1} Appellant, Dalvir Singh, appeals his convictions in the Warren County Court of Common Pleas for robbery and kidnapping. {¶2} In April 2019, a 70-year-old-woman ("Grandmother") drove her ad ult daughter and two minor great grandchildren to the emergency room so that the adult daughter couldWarren CA2020-09-056

- 2 - receive medical attention for an illness. 1 Grandmother drove her car to the front of the emergency room entrance and left it running with the two childr en inside while she took her daughter inside the emergency room. {¶3} The children, a ten-year-old girl and an eight-year-old boy, no ticed a man sitting near the entrance of the emergency room, later identifi ed as Singh. Singh walked over to the running car, opened the driver's side door, tossed his bag inside the car, and

entered the car. He looked at the children in the backseat and spoke to them in a language that they did not understand. {¶4} The boy removed his seatbelt and moved closer to his sister, an d Singh instructed the children to exit the vehicle. However, the girl was unable to unbuckle her seatbelt. The boy helped his sister remove her seatbelt and cl imbed over her lap to open the door nearest her. As the boy tried to help his sister out of the car, Singh grabbed ahold of the girl's clothing by the hood in an attempt to keep her in the car while he drove away. After a struggle, the boy was able to pull his sister from the moving car. Both children fell out of the car onto the pavement. {¶5} During this time, Grandmother observed Singh driving away in he r car and could hear the children screaming for help. She ran after the car and grabbed onto the driver's side door, shouting and banging on the window. Though she was able to open the door somewhat, Singh pulled it shut and continued to flee. Not able to keep up with the fleeing car, Grandmother was fo rced to let go; falling to the g round and incurring injuries. {¶6} Singh was apprehended and questioned by a police officer after that officer gave Singh his Miranda rights. Singh pled not guilty and filed a motion to suppress, which

1. The familial relationship between the parties is somewhat co mplicated, but has no legal impact on the appeal. Thus, for ease of discussion, we will refer to the 70- year-old woman as "Grandmother" and will refer to the two children, who are brother and sister, as "the childr en."Warren CA2020-09-056

- 3 - was denied. Singh waived his right to a jury, and the matter p roceeded to a bench trial where the court found Singh guilty of the charges. The trial c ourt sentenced Singh to consecutive and indefinite sentences totaling 10 to 11-and-one- half years in prison. Singh now appeals his convictions and sentence, raising the following assignments of error. {¶7} Assignment of Error No. 1: {¶8} THE TRIAL COURT ERRED BY DENYING SINGH'S MOTION TO SUPPRESS EVIDENCE, IN VIOLATION OF HIS STATE AND FEDERAL

CONSTITUTIONAL RIGHTS. {¶9} Singh argues in his first assignment of error that the trial co urt erred by denying his motion to suppress because he did not knowingly, in telligently, and voluntarily

waive his Miranda rights before speaking with the police officer. {¶10} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Derifield , 12th Dist. Madison No. CA2020-01-002, 2021- Ohio-1351, ¶ 16. The trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness cred ibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-Ohio-05-012, 2015-Ohio-828, ¶ 8. Therefore, when reviewing a trial court's decision on a motion to suppress, thi s court is bound to accept the trial court's findings of fact if they are supported by compete nt, credible evidence. Id . "An appellate court, however, independently reviews the trial court 's legal conclusions based on those facts and determines, without deference to the trial cour t's decision, whether as a matter of law, the facts satisfy the appropriate legal standard ." State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12. {¶11} "When a suspect is questioned in a custodial setting, the Fifth Amendment requires that he receive Miranda warnings to protect against compelled self-incrimination."

State v. Wesson , 137 Ohio St.3d 309, 2013-Ohio-4575, ¶ 34. "A suspect may the nWarren CA2020-09-056

- 4 - knowingly and intelligently waive these rights and agree to mak e a statement." Id. If a defendant later challenges a confession as involuntarily given, the state must prove a knowing, intelligent, and voluntary waiver by a preponderance o f evidence. State v. Vunda , 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-Oh io-3449, ¶ 15. {¶12} The test for voluntariness pursuant to a Fifth Amendment analys is is whether the accused's statement was the product of police overreaching. State v. HernandezMartinez , 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754, ¶ 16. A suspect makes a voluntary confession absent evidence "that his will was overb orne and his capacity for self-determination critically impaired because of coercive poli ce conduct." State v. White , 12th Dist. Butler No. CA2019-07-118, 2020-Ohio-3313, ¶ 12-14. {¶13} In deciding whether a defendant's confession is involuntarily i nduced, the court should consider the totality of the circumstances, includ ing the age, mentality, and prior criminal experience of the accused; the length, intensity , and frequency of interrogation; the existence of physical deprivation or mistrea tment; and the existence of

threat or inducement. Hernandez-Martinez at ¶ 16. {¶14} After reviewing the record, we find that the trial court proper ly denied Singh's motion to suppress. While Singh, who is a native of India, arg ues that his waiver was invalid because he does not understand English well, the record demonst rates otherwise. The arresting officer had two separate interactions with Singh on t he day in question, both of which occurred in English, and neither of which suggested that Singh did not understand English. {¶15} During the first interaction, which occurred at a gas station n ot far from the hospital, Singh explained in English to the officer that he was from India, had come to Middletown for a few days, and that he was battling a heroin ad diction. Singh also described to the officer that he was experiencing difficulties in life, w as seeking help, and that heWarren CA2020-09-056

- 5 - wanted to go to the hospital. At that time, the officer discus sed with Singh a "game plan" to help him with his issues, which included providing a phone n umber for a drug counselor, and also arranging for transport to the hospital. {¶16} The officer testified during the suppression hearing that at no time during this first interaction did Singh indicate that he did not understand what was discussed. Instead, the officer testified that Singh "seemed to be pleased with how I was going about the" interaction, and that Singh was able to "clearly communicate" h is issues and desires, all in English. {¶17} During the second interaction, which occurred after Singh was a pprehended, the officer spoke with Singh again and explained to him what wa s happening. The officer asked Singh if he understood English, and Singh confirmed that he did. The officer then told Singh to let him know if he did not understand what was ha ppening or what was being said. However, Singh never suggested he had difficulty underst anding what the officer was saying. Instead, Singh stated that he understood his rights, a nd also nodded his head indicating that he understood each right as the officer read th em. {¶18} Singh communicated with the officer in English and at all times responded appropriately to the officer's questions. For example, when th e officer asked Singh who was in the vehicle when he drove it away, Singh indicated that there were two children in the backseat. Singh also told the officer that he took the veh icle to drive it. {¶19} After being read his rights, Singh stated, "I feel sorry." Whi le Singh argues

that his statement was an indication that he did not understand what he was being discussed, the record indicates that Singh's statement was an a ttempt to display remorse, rather than confusion. In an abundance of caution, the officer again advised Singh of his rights and sought clarification if Singh wanted to speak to him . After being advised of his rights a second time, Singh indicated his desire to speak with the officer in accordance withWarren CA2020-09-056

- 6 - his voluntary waiver. {¶20} While Singh also argues that he was "ill" from his heroin addic tion, such did not render his waiver involuntary. The video of Singh's encoun ter with the officer does not indicate that Singh was under the influence of heroin. Nor is there an indication that his thinking was unclear or that he was confused or behaving irrati onally when talking to the officer. Moreover, the officer testified that he interacts wit h "dope sick" individuals on a regular basis as part of his police duties, and that in his exp erience, Singh was not affected by his heroin addiction at the time of his waiver. Such testim ony is supported by the video recording. {¶21} After reviewing the record, we find that the trial court proper ly denied Singh's motion to suppress because Singh's waiver was made voluntarily, intelligently, and knowingly. Singh's first assignment of error is therefore, ove rruled. For ease of discussion, and because they are interrelated, we will address Singh's next two assignments of error together. {¶22} Assignment of Error No. 2: {¶23} DAVID SINGH'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH A ND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION. {¶24} Assignment of Error No. 3: {¶25} DAVID SINGH'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE F IFTH

AND FOURTEENTH AMENDMENTS TO THE UNTIED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION. {¶26} Singh argues in his second and third assignments of error that his convictionsWarren CA2020-09-056

- 7 - were against the manifest weight of the evidence and were not s upported by sufficient

evidence. {¶27} When reviewing the sufficiency of the evidence underlying a cri minal conviction, an appellate court examines the evidence in order t o determine whether such evidence, if believed, would convince the average mind of the d efendant's guilt beyond a

reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after view ing 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. Jenks , 61 Ohio St.3d 259, (1991), paragraph two of the syllabus. {¶28} A manifest weight of the evidence challenge examines the "incli nation of the greater amount of credible evidence, offered at a trial, to sup port one side of the issue rather

than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evide nce and all reasonable inferences, consider the credibility of the witnesses, and dete rmine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its w ay and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. {¶29} In reviewing the evidence, an appellate court must be mindful t hat the original trier of fact was in the best position to judge the credibility of witnesses and determine the weight to be given to the evidence. State v. Blankenburg , 197 Ohio App.3d 201, 2012- Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overtur n a conviction due to the manifest weight of the evidence only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Zitney , 12th Dist. Clinton No. CA2020-06-007, 2021-Warren CA2020-09-056

- 8 - Ohio-466, ¶ 14-15. 2 {¶30} Singh was convicted of two counts of kidnapping in violation of R.C. 2905.01(B)(1), which provides, no person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by an y means, shall knowingly do any of the following, under circumstances that create a substantial risk of serious physica l harm to the victim or, in the case of a minor victim, under circumstances that either create a substantial risk of serious physical harm to the victim or cause physical harm to the victim: remove another from the place where the other person is found. "It is possible to kidnap a person by restricting their movemen t for only a short distance and if only for a brief period of time." State v. Blanton , 4th Dist. Adams No. 16CA1035, 2018- Ohio-1278, ¶ 125. {¶31} After reviewing the record, we find that Singh's kidnapping con victions are supported by sufficient evidence and were not against the manif est weight of the evidence. The state presented evidence that Singh committed kidnapping wh en he moved the children, both of whom were younger than 13 at the time, from o ne location to another after getting into the car and driving approximately 40 yards with th e children inside. During this time, Singh used force given that he was driving the car and fu rther held one child against her will by holding onto her hood as she tried to escape. Sing h's use of force against the children did not end until they were finally able to escape, fa lling from the car onto the pavement. {¶32} While Singh initially told the children to get out of the car w hen he first entered the vehicle, he chose to drive away with the children in the ba ckseat without first ensuring that they had exited. Thus, he knowingly removed the children from the place they were

2. Singh limits his discussion to his two kidnapping conviction s, and does not challenge his robbery conviction on appeal.Warren CA2020-09-056

- 9 - located and drove them some 40 yards away where they escaped fr om the car. {¶33} The state also presented evidence that Singh's removal of the c hildren occurred while causing harm or creating a substantial risk of s erious physical harm. The evidence is uncontroverted that both children only escaped the moving car by falling out of the vehicle onto the pavement. The resulting injuries easily c ould have been devastating. For example, there was a substantial risk for serious physical harm had the children's heads struck the pavement with more force, had the children landed fa ce-first, or had they been run over by the vehicle in the process. {¶34} Singh asserts that he should not have been convicted of a first -degree kidnapping charge because the children were unharmed as a resul t of the incident. According to R.C. 2905.01(C)(1), one who commits kidnapping is guilty of a first-degree felony unless the offender "releases the victim in a safe place unharmed," which renders the kidnapping charge a second-degree felony. {¶35} However, the record indicates that Singh did not release the ch ildren in a safe placed unharmed. Instead, the children had no choice but to es cape by falling from the moving vehicle. Moreover, the evidence demonstrates that both children were physically or psychologically traumatized by the incident. Beyond the str uggle with Singh to escape and hitting the pavement after falling from the moving vehicle, one child physically injured her knee, and both were psychologi cally harmed from the traumat ic event. {¶36} According to the Ohio Supreme Court, the "harm" referenced with in R.C. 2905.01(C)(1) includes both physical and psychological harm. State v. Mohamed , 151 Ohio St.3d 320, 2017-Ohio-7468. During trial, the state presented e vidence that the children suffered psychological harm as evidenced by their being "scared " during the incident and screaming for help. While Singh argues on appeal that the witn esses' testimony regarding their fear was not credible because the children had spoken to the prosecution about theWarren CA2020-09-056

- 10 - incident before the trial, the record is clear the children's r ecollection of events did not change from the time they spoke to police immediately after the incident occurred and that their description of the incident was corroborated by the secur ity camera's video recording. {¶37} Moreover, when cross-examined at trial about what the prosecuti on and children discussed, the boy testified that he and his sister, a long with Grandmother, were in the same room and talked about what happened on the day of t he incident. However, at no time did the child testify that the prosecutor told the chil dren to change their story of events or that the prosecutor steered them in any way regarding their future testimony. {¶38} Singh also suggested in his brief that the younger child was no t competent to testify. However, and according to Evid.R. 601(A), "every pers on is competent to be a witness except as otherwise provided in these rules." 3 The trial court, who was in the best position to judge the child's capability to testify, did not ha ve any reservation in allowing the child to testify. Nothing in the record suggests the child lac ked the ability to remember events and relate what had occurred. The record does not sugge st the child was fanciful or fictional, diverging from reality. In fact, the child's tes timony appears entirely credible. {¶39} After reviewing the record, we find that Singh's kidnapping con victions are supported by sufficient evidence and were not against the manif est weight of the evidence. The second and third assignments of error are overruled. {¶40} Assignment of Error No. 4: {¶41} THE TRIAL COURT UNLAWFULLY ORDERED SINGH TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCES S, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AN D THE

3. Evid. R. 601(A) was amended July 1, 2020, prior to Singh's trial. The prior version of the rule indicated that a child younger than ten needed his or her competency esta blished prior to testifying. However, the amendment removed any reference to children younger than ten be ing per se incompetent to testify.Warren CA2020-09-056

- 11 - FIFTH AND FOURTEENTH AMENDMENTS T O THE UNITED STATES CONSTITUTI ON. {¶42} Singh argues in his fourth assignment of error that the trial c ourt erred in sentencing him to consecutive sentences. {¶43} An appellate court reviews the imposed sentence according to R. C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appel late court can modify or vacate a sentence only if the appellate court finds by clear an d convincing evidence that the record does not support the trial court's findings under re levant statutes or that the sentence is otherwise contrary to law. {¶44} A sentence is not clearly and convincingly contrary to law wher e the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences th e defendant within the permissible statutory range." State v. Ahlers , 12th Dist. Butler No. CA2015-06-100, 2016- Ohio-2890, ¶ 8. Thus, this court may increase, reduce, or othe rwise modify a sentence only when it clearly and convincingly finds that the sentence is eit her contrary to law or unsupported by the record. Marcum at ¶ 7. {¶45} A consecutive sentence is contrary to law where the trial court fails to make the consecutive sentencing findings required by R.C. 2929.14(C) (4). State v. Jones , 12th Dist. Butler No. CA2019-05-087, 2020-Ohio-149, ¶ 10-14. Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step analysis and make cer tain findings before imposing

consecutive sentences. State v. Smith , 12th Dist. Clermont No. CA2014-07-054, 2015- Ohio-1093, ¶ 7. Specifically, the trial court must find that ( 1) the consecutive sentence is necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the of fender's conduct and to the danger the offender poses to the public, and (3) one of the fol lowing applies:Warren CA2020-09-056

- 12 - (a) The offender committed one or more of the multiple offense s 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 pa rt 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. R.C. 2929.14(C)(4). {¶46} "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sent encing hearing and incorporate its findings into its sentencing entry." State v. Bonnell , 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these findings, it must be clear from the record that the court engag ed in the required sentencing analysis and made the requisite findings. Smith at ¶ 8. {¶47} The record clearly indicates that the trial court's sentence wa s within the statutory range for the enumerated felony designations, support ed by the required considerations of R.C. 2929.11 and 2929.12, and included the pr oper postrelease control

notifications. {¶48} However, the trial court did not make each of the necessary con secutive sentence findings at the hearing when it imposed sentence. Dur ing the sentencing hearing, the trial court specifically found (1) that consecutive sentenc es were "necessary to properly protect the public and to punish the offender," and (2) "the co nsecutive sentences are not disproportionate to the seriousness of the offender's conduct o r danger posed by theWarren CA2020-09-056

- 13 - defendant." However, the trial court did not address the third necessary finding regarding the applicability of the R.C. 2929 .14(C)(4)(a), (b), or (c) fac tors. Thus, Singh's consecutive sentence is contrary to law where the trial court failed to mak e the final consecutive sentencing finding as required by R.C. 2929.14(C)(4). {¶49} After reviewing the record, we find that the trial court failed to make the necessary findings to impose consecutive sentences. Singh's as signment of error is sustained only as it relates to the consecutive nature of his s entence and the matter is remanded so that the trial court may resentence Singh, making t he necessary findings before imposing consecutive sentences. {¶50} Assignment of Error No. 5: {¶51} AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLA TES

THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. {¶52} In his fifth assignment of error, Singh argues that the Reagan Tokes Act is unconstitutional because it impinges on his constitutional righ t to a jury and violates the Equal Protection and Due Process Clauses, as well as the separa tion of powers doctrine. {¶53} We begin by noting that Singh did not raise these arguments to the trial court and has thus forfeited his constitutional challenges on appeal. State v. Teasley , 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; State v. Young , 8th Dist. Cuyahoga No. 108868, 2020-Ohio-4135, ¶ 21. {¶54} Even so, this court has addressed the arguments raised by Singh and has declined to find those arguments persuasive. State v. Hodgkin , 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 11 ; State v. Suder , 12th Dist. Clermont Nos. CA2020- 06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 27. {¶55} Singh's fifth assignment of error is overruled.Warren CA2020-09-056

- 14 - {¶56} Assignment of Error No. 6: {¶57} THE TRIAL COURT ERRED BY F AILING TO MERGE SINGH'S KIDNAPPING AND ROBBERY OFFENSES, IN VIOLATION OF THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION. {¶58} In his sixth assignment of error, Singh argues that the trial c ourt erred by not merging his convictions as they are allied offenses of similar import. {¶59} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the i mposition of multiple punishments for the same criminal conduct is prohibite d. State v. Conrad , 12th Dist. Butler No. CA2018-01-016, 2018-Ohio-5291, ¶ 43. However, the "failure to raise the issue of allied offenses of similar import in the trial court f orfeits all but plain error, and a

forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of just ice." State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. {¶60} In determining whether offenses are allied and should be merged for sentencing, courts are instructed to consider three separate fa ctors — the conduct, the animus, and the import. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Offenses do not merge, and a defendant may be convicted and sentenced for multiple offenses if any of the following are true: "(1) the conduct constitutes offense s of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separat e animus." Id. at paragraph three of the syllabus and ¶ 25. Two or more offenses of dissimilar import exist "when the defendant's conduct constitutes offenses involving se parate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus.Warren CA2020-09-056

- 15 - {¶61} "At its heart, the allied-offense analysis is dependent upon th e facts of a case

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. "The evidence at trial or during a plea or sentencing hearing will reveal whethe r the offenses have similar import." Id. The burden is on the defendant to establish his entitlement to the protection provided by R.C. 2941.25 against multiple punishments for a sin gle criminal act. State v.

Slamka , 12th Dist. Butler No. CA2018-10-200, 2019-Ohio-3317, ¶ 27-29. {¶62} After reviewing the record, we find that Singh's convictions ar e not allied offenses. Instead, the facts are clear that there are three di fferent victims and the harm caused by the crimes were separate and identifiable. {¶63} Regarding the victims, the children were separate victims of th e kidnapping charges while Grandmother, the car's owner, was a victim of rob bery. Moreover, the harms were separate. The kidnapping victims suffered harm associated with the terror they experienced during their kidnapping and physical harm when they eventually escaped the car and fell onto the pavement. {¶64} On the other hand, Grandmother suffered harm when she was throw n to the pavement trying to stop Singh from stealing her car. Grandmoth er held onto the door handle yelling for Singh to stop. Yet, Singh continued to flee causing her to fall, suffering physical injury in the process. Specifically, Grandmother was bleeding and bruised and injury was caused to both knees. She also twisted her right ar m as she tried to hold onto the door and open it, attempting to prevent the theft of her ca r. Grandmother testified that she "was beat up pretty bad" from the incident overall. Thus, there are three separate victims, each with their own separate harm, so that the offense s were not allied. {¶65} Singh's sixth assignment of error is overruled. {¶66} Assignment of Error No. 7: {¶67} SINGH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, INWarren CA2020-09-056

- 16 - VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUT ION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. {¶68} Singh argues in his final assignment of error that he received ineffective

assistance of counsel. {¶69} To prevail on an ineffective assistance of counsel claim, an ap pellant must satisfy the two-prong test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984). According to Strickland, in order to prevail on an ineffective assistance of counsel claim, a criminal defendant must show (1) that his coun sel's performance was deficient and (2) that that performance prejudiced him. State v. Simpson , Slip Opinion No. 2020-Ohio-6719, ¶ 18. An appellant must therefore demonstrate that his or her trial counsel's performance "fell below an objective standard of reas onableness" and demonstrate "a reasonable probability that, but for [his or her trial] counsel's unprofessional errors, the result of the proceeding would have been different. State v. Ford , 12th Dist. Madison No. CA2019-10-027, 2021-Ohio-782, ¶ 13. {¶70} After reviewing the record, we find that Singh was not denied e ffective assistance of counsel during the bench trial. Singh argues tha t his trial counsel was ineffective for failing to object to the constitutionality of t he Reagan Tokes Act, failure to argue allied offenses, and failure t o argue that the youngest w itness was incompetent to testify. However, given our discussion of these issues in the above assignments of error, there is no indication that any objection raised regarding thes e issues would have been

successful. {¶71} Moreover, Singh neither argues nor demonstrates that any of the errors he asserts on appeal would have changed the outcome of his trial. Specifically, even without the child's testimony, there was other testimony and video surv eillance that clearly showed what occurred during the incident and the evidence was overwhel ming of Singh's guilt.Warren CA2020-09-056

- 17 - Thus, Singh has failed to show a reasonable probability that, b ut for his trial counsel's alleged errors, the result of the proceeding would have been di fferent. {¶72} Singh's final assignment of error is overruled. {¶73} Judgement affirmed in part, reversed in part, and the matter is remanded for the limited purpose of resentencing.

S. POWELL and BYRNE, JJ., concur.