[Cite as State v. Berry, 2017-Ohio-1529.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 No. 16AP-659 

 Plaintiff-Appellee, : (C.P.C. No. 14CR-6374) 

 & 

v. : No. 16AP-660

(C.P.C. No. 16CR-3600)

Robert A. Berry, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on April 25, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. 

Prichard, for appellee. 

On brief: Yavitch & Palmer, Co., L.P.A., and Jeffery A. 

Linn, II, for appellant. 

 

APPEALS from the Franklin County Court of Common Pleas 

BRUNNER, J. 

Defendant-appellant, Robert A. Berry, appeals judgment entries filed in 

case No. 14CR-6374 and No. 16CR-3600 which sentenced him to a total combined term of 

imprisonment of 12 years on various charges of kidnapping, rape, and conspiracy. In all 

respects the judgments of the trial court is affirmed and we overrule all of Berry's 

assignments of error. 

I. FACTS AND PROCEDURAL HISTORY 

On December 4, 2014, a Franklin County Grand Jury indicted Berry in 

Franklin C.P. No. 14CR-6374 for two counts of rape and one count of kidnapping with an 

accompanying firearm specification in connection with an alleged incident between Berry 

and his girlfriend, J.J., on November 27, 2014. (Dec. 4, 2014 Indictment 6374.) Berry 

denied the charges in the indictment with a "not guilty" plea at arraignment. (Dec. 8, 

2014 Plea Form.) 
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Nos. 16AP-659 and 16AP-660 

Approximately 15 months later, on February 24, 2016, Berry, through 

counsel, filed a motion seeking in camera review of J.J.'s psychological records. (Feb. 24, 

2016 Mot. for in Camera Review.) Berry argued that it had been J.J.'s therapist, and not 

J.J., who first telephoned the police that J.J. had recently been involuntarily committed 

for post-traumatic stress disorder, known as "PTSD", and this raised questions about 

J.J.'s competence to testify. Id. at 2-4. 

On March 14, 2016, the trial court held a hearing to review and discuss the 

charges and a potential change of plea. In the hearing, the prosecution also informed the 

trial court that a jailhouse informant and an undercover officer working together had 

obtained evidence that Berry was seeking to hire someone to make J.J. unavailable for 

trial. (Mar. 14, 2016 Tr. Vol. 1 at 4-7.) At this juncture, the State offered a plea deal in the 

instant case that would also have allowed Berry to avoid indictment on new charges. Id. 

Berry turned down the offer. Id. Two months later, on June 27, 2016, the trial court 

again held a hearing at which the State extended a second plea offer that would have 

avoided indictment of new charges and relieved Berry of having to register as a sex 

offender. (Tr. Vol. 1 at 9-12.) Berry turned down this offer as well. Id.

Following Berry's refusal of the second plea offer, the State obtained an 

indictment in Franklin C.P. No. 16CR-3600 against Berry on July 1, 2016 for three counts 

of conspiracy—conspiracy to kidnap, conspiracy to abduct, and conspiracy to intimidate a 

witness. (July 1, 2016 Indictment 3600.) The State then sought to consolidate the two 

cases based on the notion that the offenses could properly have been joined in a single 

indictment. (July 7, 2016 Mot. for Joinder) In opposing the motion, Berry filed a 

preemptive motion to sever on July 8, 2016, arguing that unfair prejudice would result 

from joinder and consolidation. (July 8, 2016 Mot. to Sever.) 

Ten days later, on July 18, 2016, the trial court convened for jury selection 

and trial. At the outset, the trial court granted the motion to consolidate the two cases 

and joined the offenses in a single trial. (July 18, 2016 Tr. Vol. 1 at 13-15.) The trial court 

also declined to review J.J.'s psychological records in camera. (Tr. Vol. 1 at 15.) 

Thereafter, the parties began to select a jury but, by request of the parties, voir dire was 

not transcribed nor is it available for this appeal. (Tr. Vol. 1 at 32, 35.) The trial court 

recessed midway through voir dire. (Tr. Vol. 1 at 32-35.) When the parties returned from 

recess the following exchange occurred: 
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Nos. 16AP-659 and 16AP-660 

[DEFENSE COUNSEL]: Judge, may it please the Court, 

before the jury is brought back in the courtroom, bring it to 

the Court's attention a possible challenge for cause on 

potential panel Juror No. 4, [Name Redacted]. If the Court 

would remember, she indicated that in response to [the 

prosecutor]'s examination that she would be biased and was 

not sure if she could be fair. So I would ask the Court to 

consider removing her for cause at this juncture. 

THE COURT: I will not remove her for cause at this juncture. 

Anything on behalf of the State? 

[THE PROSECUTOR]: No, Your Honor. 

(Tr. Vol. 1 at 34.) 

Following the completion of voir dire, jury selection, and opening 

statements, the trial court began taking evidence on July 19, 2016. The first witness was a 

Columbus police officer who testified that on November 27, 2014 she was called to 

Hinman Avenue at around 9:30 a.m. (July 19, 2016 Tr. Vol. 1 at 67-68.) She encountered 

J.J. on site, visibly shaken and crying. (Tr. Vol. 1 at 69.) The officer testified that J.J. had 

marks on her, and though the officer's memory was not clear, she thought perhaps there 

was a mark on J.J.'s chin or jaw. Id. The officers searched the house and found nothing 

remarkable. (Tr. Vol. 1 at 75-77.) But the officers testified that J.J. retrieved and gave to 

one of the officers a gun from somewhere upstairs that was purported to have been 

involved in the incident. (Tr. Vol. 1 at 71-72.) 

J.J. then testified, stating that she was 32 and had 3 children. (Tr. Vol. 1 at 

80-81.) She explained that she met Berry and dated him for a time when she was 18, but 

they broke up when he enlisted in the military and they did not reconnect until 2014. (Tr. 

Vol. 1 at 82-83.) They rekindled the relationship initially through the Internet. (Tr. Vol. 1 

at 83.) Berry traveled from Tennessee to Ohio to visit J.J. on Memorial Day weekend and 

the two decided he should move in to J.J.'s home on East Hinman Avenue. (Tr. Vol. 1 at 

86-87.) J.J. and Berry returned to Tennessee with a car and a rented truck. (Tr. Vol. 1 at 

86-87, 133-34.) They spent some time with Berry's father in Tennessee, retrieved Berry's 

belongings, and returned to Ohio. Id. J.J. testified that it was not long before Berry 

became physically abusive. (Tr. Vol. 1 at 94.) But J.J. stated she did not report the abuse 

because she was scared. Id.
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Nos. 16AP-659 and 16AP-660 

J.J. testified that at around 11:30 p.m. or midnight, on November 26, 2014 

(the day before Thanksgiving), Berry came home bringing dinner with him. (Tr. Vol. 1 at 

98-99.) She testified that he seemed angry when he arrived and his eyes appeared glassy, 

as if he had been drinking. (Tr. Vol. 1 at 98-101.) The two of them began to argue and 

Berry pulled a handgun from the back of his pants. (Tr. Vol. 1 at 102-03.) Berry shoved 

the gun into J.J.'s chest, said he was going to shoot her in the heart, and told her "to get 

ready to orphan [her] children." (Tr. Vol. 1 at 104.) He shoved her into a corner, held the 

gun between her eyes, and shoved it underneath her chin and neck. (Tr. Vol. 1 at 106.) At 

one point, she attempted to grab the gun because it was bruising her but he warned her 

that if she touched it he would kill her. (Tr. Vol. 1 at 107.) J.J. also testified about some 

sexual remarks Berry made: 

He was telling me that I was going to give him all of the 

money in my bank account so that he could leave the state 

that much sooner, that he was going to leave me, that I wasn't 

going to say a fucking word about that. That I, you know, was 

going to stop being a fat, lazy bitch, that I was going to, you 

know, not say anything to him unless it was nice; and if I had 

nothing else to say to him other than niceness or the sound of 

me sucking his dick, then I was not to say a word. And if I did, 

he would blow my head off. 

(Tr. Vol. 1 at 105-06.) She responded to Berry's behavior by agreeing with him and 

placating him. (Tr. Vol. 1 at 105.) 

Following this episode, Berry told J.J. to eat the food he had bought for her. 

(Tr. Vol. 1 at 107-08.) He put the gun away and sat down with her for dinner. Id. She 

shook as she ate and he rolled her chair close to his and put a hand on her leg to attempt 

to calm her. Id.

After dinner, J.J. asked to be excused to do laundry. (Tr. Vol. 1 at 109.) She 

testified that really she just wanted to get away from him, but he followed her downstairs 

to the laundry area and began making more threats, this time calmly explaining that he 

would cut her up and spread her all over America, or eat her, or kill her children. (Tr. Vol. 

1 at 109-10.) They returned to the first floor together and Berry smoked a cigarette and 

rambled about things that J.J. could not recall at the time of trial. (Tr. Vol. 1 at 111.) After 

some interval, J.J. said she wanted to go to bed and so they went upstairs to bed. (Tr. Vol. 
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Nos. 16AP-659 and 16AP-660 

1 at 112-13.) Upstairs, Berry left the pistol on the nightstand rather than its usual place, 

holstered, in the drawer. (Tr. Vol. 1 at 113-14.) 

Once the two were in bed, no further arguments or threats occurred. (Tr. 

Vol. 1 at 114.) J.J. testified that, after a time, the following exchange took place: 

A. I was laying there and he said, "I guess nothing is going to 

happen, huh?" 

 And I said, "What are you talking about?" 

 He said, "What the fuck did I tell you downstairs?" 

Q. Did you know what he was talking about? 

A. I did. 

Q. What was he talking about? 

A. The fact that he told me that I had to be nice to him and 

suck his dick. 

Q. Then what happened? 

A. I said, "Is that your backwards way of asking me?" 

 And he said yes, and I agreed and did it. 

(Tr. Vol. 1 at 114-15.) While the oral sex was ongoing, J.J. pushed her panties to the side 

and Berry inserted his fingers in her vagina. (Tr. Vol. 1 at 116.) She backed away, however 

because it was hurting her. Id. J.J. testified that throughout the night the gun remained 

on the night table and that whenever she moved, she sensed that he awoke and was 

watching her. (Tr. Vol. 1 at 116-17.) 

The following day she acted normally, showering and applying makeup so 

as not to arouse Berry's suspicion that she meant to run away. (Tr. Vol. 1 at 117-18.) Berry 

left the home and went to the ATM for gas money for J.J. to drive to her mother's house 

for Thanksgiving. (Tr. Vol. 1 at 120.) She explained that she had not yet been paid for her 

work before the holiday, so Berry had agreed to give her money to travel to visit her 

mother. Id. Berry returned to the house, gave her the gas money, and then left for work. 

(Tr. Vol. 1 at 122.) Instead of leaving for her mother's house, however, J.J. telephoned an 

ex-boyfriend and met him in the parking lot of a local grocery store. Id. She also 
6 

Nos. 16AP-659 and 16AP-660 

telephoned her therapist who, on hearing her story, notified the police. (Tr. Vol. 1 at 123.) 

She and the ex-boyfriend (with whom she had participated in an "on and off" relationship 

for about six years) returned to her house to wait for the police. (Tr. Vol. 1 at 124, 137.) 

After speaking with the police and being checked out at the hospital, she and her exboyfriend went to her mother's house for Thanksgiving. (Tr. Vol. 1 at 125-27, 141.) 

The nurse who examined J.J. testified next. She testified that she noted 

trauma to J.J.'s chin and forehead although she admitted that she saw neither visible 

bruising nor redness. (Tr. Vol. 1 at 169.) She noted trauma, however, because if a patient 

indicates pain upon being touched in a location, even if the bruise is not visible, sexual 

assault nursing policy is to "count it as trauma." Id. The nurse stated she noted a linear 

abrasion underneath J.J.'s chin and a circular abrasion like a loop about the size of a 

quarter or 50-cent piece. (Tr. Vol. 1 at 169-70.) Photographs of J.J.'s face and neck show 

no obvious or visible signs of bruising. (State's Exs. B3-B5.) The nurse noted no signs of 

vaginal trauma, but testified that this is not unusual in pre-menopausal women due to 

tissue elasticity. (Tr. Vol. 1 at 185-89.) She also testified that DNA samples were collected 

from J.J. (Tr. Vol. 1 at 175-82.) 

At trial, a number of stipulations and exhibits on forensic topics were 

entered into evidence and three scientific experts testified. The parties stipulated that the 

gun allegedly used by Berry was operable and that DNA was collected from both the gun 

and Berry. (Tr. Vol. 1 at 191; July 20, 2016 Tr. Vol. 2 at 248.) The experts testified that 

Berry and J.J. were both contributors to the DNA sample obtained from J.J.'s mouth and 

that semen was found in the oral swabs from J.J.'s mouth. (Tr. Vol. 1 at 211, 225-26.) 

Berry admitted in his later testimony that he and J.J. had oral sex that night (though he 

maintained that it was consensual and mutual). (Tr. Vol. 2 at 436-37.) Neither Berry nor 

J.J. could be excluded as contributors to the DNA collected from the muzzle of the firearm 

and J.J. admitted that she had touched the gun on prior occasions. (Tr. Vol. 1 at 103; Tr. 

Vol. 2 at 260-61.) The remainder of the firearm, clip and body, contained no useable 

DNA. (Tr. Vol. 2 at 258-59; State's Ex. F2.) 

In the State's case against Berry on the conspiracy charges arising from 

alleged jail activity (conspiracy to kidnap, conspiracy to abduct, and conspiracy to 

intimidate a witness), three witnesses testified: the Franklin County Sheriff's Office 

sergeant who supervised the investigation, the informant, and the undercover officer. The 
7 

Nos. 16AP-659 and 16AP-660 

informant testified that he overhead Berry saying to another inmate that he would like to 

have J.J. taken care of so she would not show up for court. (Tr. Vol. 2 at 299.) The 

informant assumed this meant killed and contacted the prosecutor (with whom he was 

already acquainted). (Tr. Vol. 2 at 299, 303.) He met with the sergeant from the Sheriff's 

office and agreed to wear a wired device in the waistband of his pants, preferring pants to 

a shirt to avoid arousing suspicion. (Tr. Vol. 2 at 273, 308-09.) But this may have caused 

poor recorded audio quality, even after a technician attempted to "clean up" or enhance 

the quality of the recording. (Tr. Vol. 2 at 276-77.) Enough of the recording was audible 

to discern that Berry gave the informant a detailed description of the house, neighboring 

houses, J.J.'s car, and the fact that the back door of the house was weak (having been 

kicked-in previously) and often left unlocked by J.J. (State's Ex. H at 9:24:24-9:27:15, 

10:16:30-10:21:25.) Berry also said, however, "[d]on't do anything to her, just scare her. 

Scare her into not coming back and droppin' all the charges." Id. at 9:29:35-9:29:46. 

Berry elaborated saying that J.J. was lying and that the only reason she was doing all this 

is because she knew he couldn't "get to her." Id. at 9:33:00-9:33:32. 

The undercover officer in the investigation was the final prosecution 

witness. He testified that he played the part of Jacob Smith, "Smitty," who was 

supposedly a friend of the informant amenable to helping with troublesome witnesses. 

(Tr. Vol. 2 at 349-50.) In that guise, he met with Berry. (Tr. Vol. 2 at 356-57.) Berry was 

not specific as to exactly what he wanted done when he spoke to the undercover officer. 

He again described the house, J.J., and her car. (Tr. Vol. 2 at 360-62.) He again said he 

did not want her harmed but that he wanted her to "go away" or be "missing." (Tr. Vol. 2 

at 358-61.) The undercover officer testified that he attempted to record the meeting but, 

due to a technical malfunction, he was not able. (Tr. Vol. 2 at 354-55.) 

Berry presented two witnesses, himself and his father. His father, Eddie 

Berry, testified that after his son moved in with J.J. (which happened very suddenly) his 

son only visited Eddie on two occasions. (Tr. Vol. 2 at 384-86, 392.) On both occasions, 

his son was forced to cut the visit short because J.J. was calling and texting incessantly, 

out of a jealous suspicion that Berry was not visiting his father but rather some other 

woman. (Tr. Vol. 2 at 392-403.) The second short visit between Berry and his father was 

on October 14. (Tr. Vol. 2 at 402.) Approximately one month later, Eddie Berry testified 

that he learned that J.J. had his son arrested. (Tr. Vol. 2 at 404-05.) When he went to the 
8 

Nos. 16AP-659 and 16AP-660 

house some interval after his son was arrested to retrieve his son's belongings, J.J. was 

not present but her ex-boyfriend was. (Tr. Vol. 2 at 405-06.) 

Berry was the last witness to testify. He said that he met J.J. in 1999 in 

Hebron, Ohio. (Tr. Vol. 2 at 411.) He broke off the relationship when the firm he was 

working for went bankrupt unexpectedly; he changed careers, enlisting in the United 

States Army. (Tr. Vol. 2 at 412.) He confirmed that he and J.J. reconnected in 2014 

through the Internet and that he moved in with her after visiting for the first time on 

Memorial Day weekend, 2014. (Tr. Vol. 2 at 417-18.) He testified that he had abbreviated 

his visits with his father because of J.J.'s jealous pestering. (Tr. Vol. 2 at 421-24.) He also 

testified that the night before Thanksgiving he brought dinner home for himself and J.J. 

(Tr. Vol. 2 at 431-32.) 

Berry stated that two days before Thanksgiving, he and J.J. had argued 

about who would take the kids to J.J.'s mother's house for Thanksgiving. (Tr. Vol. 2 at 

432-34.) He had to work and did not want to accompany J.J. on the long, late drive to 

J.J.'s mother's house. Id. During the confrontation he decided to end things because he 

was tired of fighting with J.J. all the time and told her as much. Id. J.J. was upset that he 

was leaving. (Tr. Vol. 2 at 434.) 

The next day (the day on which J.J. alleged the incident occurred), he 

packed up some of his stuff. (Tr. Vol. 2 at 434-35.) He and J.J. ate the dinner he brought 

home, but he ate out on the porch while she ate inside. (Tr. Vol. 2 at 435.) She watched 

television while he went to bed. (Tr. Vol. 2 at 435-36.). When she joined him in bed she 

wanted to have sex but he did not want to. (Tr. Vol. 2 at 436-37.) However, she 

convinced him to engage in mutual oral sex. Id. He denied ever bringing out the gun at 

any point during the night and said it was in its usual space in the nightstand drawer next 

to the bed. (Tr. Vol. 2 at 437-38.) He testified that he certainly would not have carried it 

with him in his pants as he does not have a concealed carry permit. Id.

The next day, according to Berry, he awoke, showered, and went to work. 

(Tr. Vol. 2 at 443.) He finished work at 11:00 or 11:30 a.m. and returned to finish packing. 

Id. He assumed that J.J. was at her mother's house until the police knocked on the door. 

Id. The police told him J.J. had accused him of rape. (Tr. Vol. 2 at 444.) He denied the 

charge but told them he and J.J. had engaged in consensual oral sex and voluntarily gave 

the police a DNA sample. Id.
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Nos. 16AP-659 and 16AP-660 

Berry admitted to many, but not all, of the statements he made to the 

informant. (Tr. Vol. 2 at 462-70.) He also admitted that he wanted "Smitty" to scare J.J. 

into dropping the charges. (Tr. Vol. 2 at 463.) However, he insisted that he thought 

"Smitty" would talk to J.J. (Tr. Vol. 2 at 470.) He denied that he said he wanted her to go 

missing. (Tr. Vol. 2 at 475.) 

On July 22, 2016, after initially indicating that it could not reach a verdict 

on the rape charge of digital vaginal penetration, the jury convicted Berry on all counts of 

both indictments. (July 21, 2016 Tr. Vol. 3 at 559, 563-64.) At a sentencing hearing on 

August 23, 2016, the trial court merged the three conspiracy counts and sentenced Berry 

to 3 years on the first conspiracy count, conspiracy to kidnap (which was elected by the 

prosecution). (Aug. 23, 2016 Tr. Vol. 3 at 577.) A judgment entry to that effect issued on 

August 24 and was amended on September 28 to properly reflect the merger of all three 

counts. (Aug. 24, 2016 Jgmt. Entry 3600; Sept. 28, 2016 Amended Jgmt. Entry 3600.) 

During the sentencing hearing, the trial court sentenced Berry to 3 years on the 

kidnapping, a consecutive 3-year sentence on the gun specification, and 3 years each for 

the two rapes, to be served concurrently with each other but consecutively to the 6 years 

for the kidnapping and related specification. (Tr. Vol. 3 at 577-78.) The trial court 

entered judgment on the convictions and sentences on August 24, 2016 and, thereafter, 

amended the judgment on January 17, 2017, to correct a typographical error which had 

improperly stated that the rape counts merged. (Aug. 24, 2016 Jgmt. Entry 6374; Jan. 17, 

2017 Amended Jgmt. Entry 6374.) The term of imprisonment for Franklin C.P. No. 

14CR-6374 was 9 years and the total for Franklin C.P. No. 16CR-3600 was 3 years. The 

trial court ordered Berry to serve these sentences consecutively to each other for a total 

prison term of 12 years. (Amended Jgmt. Entry 3600; Amended Jgmt. Entry 6374.) 

Berry now appeals. 

II. ASSIGNMENTS OF ERROR 

Berry argues seven assignments of error for our review: 

[1.] THE TRIAL COURT ERRED BY FAILING TO MERGE 

THE KIDNAPPING AND THE RAPE CONVICTIONS FOR 

PURPOSES OF SENTENCING DEPRIVING APPELLANT OF 

DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH 

AND FOURTEENTH AMENDMENT TO THE UNITED 
10 

Nos. 16AP-659 and 16AP-660 

STATES CONSTITUTION AND COMPARABLE 

PROVISIONS OF THE OHIO CONSTITUTION 

[2.] THE TRIAL COURT ERRED IN NOT PERMITTING 

DEFENSE COUNSEL TO REVIEW RECORDS IN CAMERA

DEPRIVING APPELLANT OF DUE PROCESS OF LAW AS 

GUARANTEED BY THE FIFTH AND FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND COMPARABLE PROVISIONS OF THE OHIO 

CONSTITUTION. 

[3.] THE VERDICT RENDERED BY THE TRIAL COURT 

WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE 

EVIDENCE DEPRIVING APPELLANT OF DUE PROCESS 

OF LAW AS GUARANTEED BY THE FIFTH AND 

FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND COMPARABLE PROVISIONS OF 

THE OHIO CONSTITUTION. 

[4.] THE TRIAL COURT ERRED BY FINDING APPELLANT 

GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE 

PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF 

THE OHIO CONSTITUTION BECAUSE THE VERDICT OF 

GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

[5.] THE TRIAL COURT ERRED IN JOINING 14 CR 6374 

AND 16 CR 3600 DEPRIVING APPELLANT OF DUE 

PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND 

FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND COMPARABLE PROVISIONS OF 

THE OHIO CONSTITUTION. 

[6.] DEFENSE COUNSEL WAS INEFFECTIVE FOR 

FAILING TO RAISE THE ISSUE OF JOINDER AT THE 

CLOSE OF THE STATE'S CASE OR AT THE CONCLUSION 

OF ALL THE EVIDENCE AS GUARANTEED BY THE SIXTH 

AND FOURTEENTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION AND COMPARABLE 

PROVISIONS OF THE OHIO CONSTITUTION. 

[7.] THE TRIAL COURT ERRED IN FAILING TO 

DISMISSED JUROR NO. 4 FOR CAUSE DEPRIVING 

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED 

BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND COMPARABLE 

PROVISIONS OF THE OHIO CONSTITUTION.
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Nos. 16AP-659 and 16AP-660 

(Sic passim.) For ease of discussion we address these out of order. 

III. DISCUSSION 

A. Third and Fourth Assignments of Error—Whether the Convictions 

were Against the Manifest Weight of the Evidence or not Supported by 

Sufficient Evidence 

The Supreme Court of Ohio has "carefully distinguished the terms 

'sufficiency' and 'weight' * * * declaring that 'manifest weight' and 'legal sufficiency' are 

'both quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), 

paragraph two of the syllabus. 

Sufficiency is: 

"[A] term of art meaning that legal standard which is applied 

to determine whether the case may go to the jury or whether 

the evidence is legally sufficient to support the jury verdict as 

a matter of law." * * * In essence, sufficiency is a test of 

adequacy. Whether the evidence is legally sufficient to sustain 

a verdict is a question of law. 

Eastley at ¶ 11, quoting Thompkins at 386; Black's Law Dictionary 1433 (6th Ed.1990). 

"In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime proven beyond a reasonable doubt.' " State v. 

Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 

259 (1991), paragraph two of the syllabus. 

By contrast: 

Weight of the evidence concerns "the inclination of the 

greater amount of credible evidence, offered in a trial, to 

support one side of the issue rather than the other. It indicates 

clearly to the jury that the party having the burden of proof 

will be entitled to their verdict * * *. Weight is not a question 

of mathematics, but depends on its effect in inducing belief." 

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest 

weight analysis "the appellate court sits as a 'thirteenth juror' and disagrees with the jury's 

resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Florida, 457 

U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines whether in 
12 

Nos. 16AP-659 and 16AP-660 

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.' " Id.

at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). 

1. Conspiracy 

The jury rendered a verdict against Berry on three counts of conspiracy to 

(respectively) kidnap, abduct, and intimidate a witness. R.C. 2923.01(A); 2905.01(A); 

2905.02(A)(1) and (2); 2923.31(I)(2)(a); 2923.32; 2921.04(B)(1) and (2). However, the 

offenses merged and the prosecution elected to convict and sentence Berry for the count 

of conspiracy to kidnap. (Tr. Vol. 3 at 568) (electing the conspiracy to kidnap count); see 

also R.C. 2941.25(A) (providing that in the case of merged offenses "the defendant may be 

convicted of only one"). 

R.C. 2923.01 sets forth the offense of conspiracy in relevant part as: 

(A) No person, with purpose to commit or to promote or 

facilitate the commission of * * * kidnapping * * * shall do 

either of the following: 

(1) With another person or persons, plan or aid in planning 

the commission of any of the specified offenses; 

(2) Agree with another person or persons that one or more of 

them will engage in conduct that facilitates the commission of 

any of the specified offenses. 

(B) No person shall be convicted of conspiracy unless a 

substantial overt act in furtherance of the conspiracy is alleged 

and proved to have been done by the accused or a person with 

whom the accused conspired, subsequent to the accused's 

entrance into the conspiracy. For purposes of this section, an 

overt act is substantial when it is of a character that manifests 

a purpose on the part of the actor that the object of the 

conspiracy should be completed. 

* * * 

(D) It is no defense to a charge under this section that, in 

retrospect, commission of the offense that was the object of 

the conspiracy was impossible under the circumstances. 

(E) A conspiracy terminates when the offense or offenses that 

are its objects are committed or when it is abandoned by all 

conspirators. In the absence of abandonment, it is no defense 
13 

Nos. 16AP-659 and 16AP-660 

to a charge under this section that no offense that was the 

object of the conspiracy was committed. 

R.C. 2905.01(A)(5) sets forth kidnapping in relevant part as follows: 

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

another from the place where the other person is found or 

restrain the liberty of the other person, for any of the 

following purposes: 

* * * 

(5) To hinder, impede, or obstruct a function of government. 

The jailhouse informant wore a wire and testified about Berry's scheme to 

keep J.J. from testifying. (Tr. Vol. 2 at 273, 308-09.) During the audio recording, Berry 

gave the informant a detailed description of the house, neighboring houses, J.J.'s car, and 

the fact that the back door was often left unlocked by J.J. and was weak, in any case, as a 

result of having been kicked-in previously. (State's Ex. H at 9:24:24-9:27:15, 10:16:30-

10:21:25.) Berry was recorded as saying, "[d]on't do anything to her, just scare her. Scare 

her into not coming back and droppin' all the charges." (State's Ex. H at 9:29:35-

9:29:46.) Berry also said that the only reason J.J. was doing all this is because she knew 

he could not "get to her." Id. at 9:33:00-9:33:32; Tr. Vol. 2 at 324. "She knows she's 

lying, and me being out on the streets would scare her." (State's Ex. H at 9:33:25-9:33:32; 

Tr. Vol. 2 at 325.) Berry solicited the informant's help and the help of the informant's 

friend, "Smitty." (Tr. Vol. 2 at 326-28.) The undercover officer in the investigation who 

played the part of "Smitty," met with Berry and testified about the meeting. (Tr. Vol. 2 at 

349-50, 356-57.) He testified that though Berry was not specific as to exactly what he 

wanted done, he again described the house, J.J., and her car. (Tr. Vol. 2 at 360-62.) He 

also said that although Berry did not want J.J. harmed, he wanted her to "go away" or be 

"missing." (Tr. Vol. 2 at 358-61.) 

In short, Berry did not explicitly solicit either the informant or his 

supposed friend (the undercover agent) to use "force, threat, or deception" to remove or 

restrain J.J. in order to impede or obstruct his upcoming trial. (Tr. Vol. 2 at 364-66.) But 

by describing J.J., her car, the house, and particularly the weak back door, it is apparent 

he intended "Smitty" to use force, threat, deception, or some combination of the three to 

accomplish his goal; in essence, that J.J. "not com[e] back" or "go away" or be "missing," 
14 

Nos. 16AP-659 and 16AP-660 

at the time of trial. (Tr. Vol. 2 at 358-61; State's Ex. H at 9:24:24-9:27:15, 10:16:30-

10:21:25.) Berry's conviction for conspiracy to kidnap was neither against the manifest 

weight of the evidence nor insufficiently supported. 

2. Kidnapping 

R.C. 2905.01(A)(3) sets forth kidnapping in relevant part as: 

(A) No person, by force, threat, or deception,* * * shall * * * 

restrain the liberty of the other person, for any of the 

following purposes: 

* * * 

(3) To terrorize * * *the victim. 

J.J. testified that Berry threatened her with a gun, shoving her into a 

corner and placing it firmly against her chest, chin, neck, and between her eyes while 

telling her he was going to kill her. (Tr. Vol. 1 at 104-07.) She testified that she did not 

feel free to leave while this was going on. (Tr. Vol. 1 at 106.) Under the circumstances, a 

"rational trier of fact could have found the essential elements of the crime," restraint by 

force or threat with purpose to terrorize, "proven beyond a reasonable doubt" from the 

evidence. Monroe at ¶ 47; R.C. 2905.01(A)(3). 

The only other witness to what happened that night, Berry, denies that 

anything at all untoward occurred. (Tr. Vol. 2 at 432-44.) He testified that he and J.J. 

engaged in consensual oral sex and J.J. admitted that she had touched the gun on prior 

occasions. (Tr. Vol. 1 at 103; Tr. Vol. 2 at 436-37.) Thus, the DNA evidence, which could 

not exclude either Berry or J.J. as contributors to DNA on the gun, along with the genetic 

material in J.J.'s mouth, is consistent both with J.J.'s statements and with Berry's version 

of events from that night. (Tr. Vol. 1 at 191, 211, 225-26; Tr. Vol. 2 at 248, 260-61.) J.J.'s 

sexual assault physical exam did not rule out the assault J.J. described, but neither did it 

directly produce evidence of it. (Tr. Vol. 1 at 169-70, 185-89; State's Exs. B3-B5.) We also 

recognize that there are certain seeming inconsistencies and quirks in J.J.'s account: 

(1) Berry told J.J. he would empty her bank account but then lent her gas money so she 

could visit her mother; (2) the police did not find the gun which was supposedly sitting in 

plain sight on the night stand and J.J. had to bring it to one of them; (3) after this ordeal, 

J.J. went not to the police but rendezvoused with an ex-boyfriend in a grocery store 
15 

Nos. 16AP-659 and 16AP-660 

parking lot, whom she later took to her mother's house for Thanksgiving; and (4) J.J. did 

not tell the police about the situation until her therapist had notified them. See supra ¶ 7, 

9, 13. Nonetheless, the jury had the opportunity to evaluate both J.J. and Berry's 

testimony and it evidently decided to give more weight to J.J.'s testimony as more 

credible. 

Berry's attempt to have J.J. kidnapped by "Smitty," is (based upon 

precedent) consistent evidence of consciousness of guilt. State v. Richey, 64 Ohio St.3d 

353, 357 (1992) (threats against witnesses can evidence consciousness of guilt). Under 

the circumstances, we cannot say that "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" concerning the kidnapping allegations. Thompkins at 387. 

3. Rape 

R.C. 2907.02(A) sets forth the offense of rape as: 

No person shall engage in sexual conduct with another when 

the offender purposely compels the other person to submit by 

force or threat of force. 

R.C. 2907.02(A)(2). 

A person acts purposely when it is the person's specific 

intention to cause a certain result, or, when the gist of the 

offense is a prohibition against conduct of a certain nature, 

regardless of what the offender intends to accomplish thereby, 

it is the offender's specific intention to engage in conduct of 

that nature. 

R.C. 2901.22(A). 

It is undisputed by both Berry and J.J. that J.J. performed oral sex on 

Berry on the night in question. (Tr. Vol. 1 at 114-15; Tr. Vol. 2 at 436-37.) And though 

their testimonies differ as to exactly what happened (J.J. said fingers and Berry said oral), 

both agreed that Berry engaged in sexual conduct involving J.J.'s vagina. (Tr. Vol. 1 at 

116; Tr. Vol. 2 at 436-37); see also R.C. 2907.01(A) (defining "sexual conduct" as including 

fellatio, cunnilingus, and "without privilege to do so, the insertion, however slight, of any 

part of the body * * * into the vaginal * * * opening of another"). Thus, the pivotal but 

disputed element is force or threat of force, and the relevant question is whether it was 
16 

Nos. 16AP-659 and 16AP-660 

Berry's "specific intention to" "compel[] [J.J.] to submit" to engaging in sexual conduct 

"by force or threat of force." R.C. 2901.22(A); 2907.02(A)(2). 

J.J. testified about the oral sex and vaginal penetration as follows: 

Q. So you went up to the bedroom? 

A. Yes. 

Q. Whose idea was it to go up there? 

A. Me. 

Q. Why did you say -- 

A. I wanted to go to bed. 

Q. Why? 

A. Because I just, I was exhausted. I was physically and 

emotionally drained. 

Q. And where was he going to sleep? 

A. I didn't care. 

Q. Okay. Well, if he was going to sleep in bed with you, how 

did you feel about that? 

A. I just had to make it through until I could leave. 

Q. Were you still trying to please him? 

A. Yes. 

Q. Or say what he wanted? 

A. Yes. 

Q. Did you have a cell phone? 

A. Yes. 

Q. Why didn't you call 911? 

A. Because I was told that if I threatened his freedom, he 

would kill me. 

Q. All right. Now, did he still have the gun? 
17 

Nos. 16AP-659 and 16AP-660 

A. Yes. 

Q. When you went upstairs, what if anything did he do with 

the gun? 

A. Set it out in plain eyesight. 

Q. Where? 

A. On the nightstand. 

Q. In your bedroom? 

A. Yes. 

Q. What did you do? 

A. He usually put it away. He usually had a holster for it and 

it went inside the drawer. This time it was different. It sat 

on top, out. 

Q. So you knew where he normally kept it? 

A. I did. 

Q. And he did not do that this time? 

A. No. 

Q. It has [sic] out where you could see it? 

A. Absolutely. 

Q. On whose side of the bed? 

A. His. 

Q. Did the two of you go to bed? 

A. Yes. 

Q. Was there anymore [sic] argument, threats, anything like 

that when you first went to bed? 

A. No. 

Q. Did that change? 

A. No. 
18 

Nos. 16AP-659 and 16AP-660 

Q. What happened in the bed? 

A. I was laying[sic] there and he said, "I guess nothing is 

going to happen, huh?" 

 And I said, "What are you talking about?" 

 He said, "What the fuck did I tell you downstairs?" 

Q. Did you know what he was talking about? 

A. I did. 

Q. What was he talking about? 

A. The fact that he told me that I had to be nice to him and 

suck his dick. 

Q. Then what happened? 

A. I said, "Is that your backwards way of asking me?" 

 And he said yes, and I agreed and did it. 

Q. You did it? 

A. I did. 

Q. Did you feel like you had a choice? 

A. No. 

Q. Where was the gun? 

A. It was in plain sight on the nightstand beside me -- or 

beside him. I mean, it was beside him on the nightstand 

where I could see it. I only had a queen-size bed, so it was 

sitting like this. So if I am on this side, he is on this side 

and the gun is right there. 

Q. Could he easily reach it? 

A. Absolutely. 

Q. Did you perform oral sex on him? 

A. I did. 

Q. His penis was in your mouth? 
19 

Nos. 16AP-659 and 16AP-660 

A. Absolutely. 

Q. And did you feel like you had a choice? 

A. No. 

Q. While that was happening did he do anything to your 

body? 

A. He was touching my body. He also put fingers in my 

vagina. I backed away because it was hurting because it 

was, you know, I wasn't excited or anything because this 

was not an act of sex for me. It was control and I knew 

that. 

Q. And did you want him to put his fingers inside of you? 

A. No, I didn't really want to touch him at all. I just didn't feel 

like I had a choice. 

Q. What kind of clothing did you have on? 

A. I had a bra and underwear on. 

Q. Did he remove any of that clothing to do that? 

A. No, I just pushed it to the side. 

Q. What about his clothing? 

A. He always went to bed naked. 

(Tr. Vol. 1 at 112-16.) 

That Berry left the gun out rather than putting it away and explicitly 

referenced the threats about how he would blow off J.J.'s head if he heard anything from 

her other than "niceness or the sound of [J.J.] sucking his dick," is evidence of Berry's 

"specific intention to" "compel[] [J.J.] to submit" to engaging in sexual conduct "by force 

or threat of force." (Tr. Vol. 1 at 106, 113-15); R.C. 2901.22(A); 2907.02(A)(2). As to 

fellatio, " 'viewing the evidence in a light most favorable to the prosecution, a[] rational 

trier of fact could have found the essential elements of the crime proven beyond a 

reasonable doubt.' " Monroe at ¶ 47, quoting Jenks at paragraph two of the syllabus. 

As to digital vaginal penetration, the evidence was sufficient to support a 

second conviction of rape based on J.J.'s testimony that, as she performed fellatio, "[h]e 
20 

Nos. 16AP-659 and 16AP-660 

was touching my body." (Tr. Vol. 1 at 116.) As he was touching her body, she pushed 

aside her underwear and he placed his fingers in her vagina. J.J. was clear in her 

testimony that she did not want his fingers there. She also testified that she believed she 

had to comply with Berry's earlier threats and the implicit and continuing threat of his 

gun on the nightstand, and so she let him touch her, moving aside her underwear as she 

performed fellatio to avoid being hurt or killed. J.J. stated she waited for Berry to leave so 

that she could get away from him. Although the evidence on the digital penetration1 could 

have been construed in varying ways—ultimately, it is within the province of the jury to 

weigh the evidence. The jury convicted him of rape for the digital penetration. The 

evidence was sufficient for a jury to convict Berry on this count. J.J. moved aside her 

underwear in complying with Berry's earlier threats and orders to keep from being hurt or 

killed by Berry. 

As for the issue of whether the jury's verdict was against the manifest 

weight of the evidence, the only other witness to what happened that night, Berry, denied 

that anything inappropriate occurred. (Tr. Vol. 2 at 432-44.) He stated that he and J.J. 

engaged in consensual oral sex. (Tr. Vol. 2 at 436-37.) DNA evidence was consistent with 

both J.J. and Berry's accounts of the events of the evening in question. (Tr. Vol. 1 at 211, 

225-26.) The physical exam did not rule out a rape, but neither did it prove rape 

occurred. (Tr. Vol. 1 at 185-89.) There were evidentiary questions about J.J.'s testimony 

in support of the two counts of rape—oral and digital: (1) J.J. moved her underwear to 

allow Berry to access her vagina during the oral rape; (2) Berry lent J.J. gas money so she 

could leave and visit her mother; (3) the police did not find the gun in plain sight on the 

night stand (J.J. had retrieved it after their search and brought it to them); (4) J.J. went 

not to the police but met with an ex-boyfriend in a grocery store parking lot and then later 

took him to her mother's house for Thanksgiving; and (5) it was J.J.'s therapist who 

 

1 J.J. testified: 

Q. What kind of clothing did you have on? 

A. I had a bra and underwear on. 

Q. Did he remove any of that clothing to [accomplish the digital 

penetration]? 

A. No, I just pushed it to the side. 

(Tr. Vol. 1 at 116.) 
21 

Nos. 16AP-659 and 16AP-660 

notified the police and not J.J. See supra ¶ 7, 9, 12-13. Nonetheless, the jury had the 

opportunity to consider and weigh both J.J.'s and Berry's testimony. It decided to believe 

J.J., finding Berry guilty of all counts of the two indictments on the greater weight of the 

evidence against him. Under the circumstances, we cannot say that "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." Thompkins at 387. 

We overrule Berry's third and fourth assignments of error. 

B. First Assignment of Error—Whether the Trial Court Erred by Failing to 

Merge the Kidnapping and Rape Convictions 

The Ohio statute on allied offenses requires: 

(A) Where the same conduct by [the] defendant can be 

construed to constitute two or more allied offenses of similar 

import, the indictment or information may contain counts for 

all such offenses, but the defendant may be convicted of only 

one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in 

two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the 

indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them. 

R.C. 2941.25. 

The Supreme Court instructs courts in Ohio on the interpretation and 

application of R.C. 2941.25: 

1. In determining whether offenses are allied offenses of 

similar import within the meaning of R.C. 2941.25, courts 

must evaluate three separate factors—the conduct, the 

animus, and the import. 

2. Two or more offenses of dissimilar import exist within the 

meaning of R.C. 2941.25(B) when the defendant's conduct 

constitutes offenses involving separate victims or if the harm 

that results from each offense is separate and identifiable. 

3. Under R.C. 2941.25(B), a defendant whose conduct 

supports multiple offenses may be convicted of all the offenses 

if any one of the following is true: (1) the conduct constitutes 

offenses of dissimilar import, (2) the conduct shows that the 
22 

Nos. 16AP-659 and 16AP-660 

offenses were committed separately, or (3) the conduct shows 

that the offenses were committed with separate animus. 

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraphs one through three of the 

syllabus. Whether offenses are allied offenses of similar import is reviewed de novo. 

State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 26-28. 

Berry argues that if J.J.'s testimony is to be believed, the kidnapping was 

just one long sexually-oriented offense and only occurred as a means to accomplish the 

rape. (Jan. 13, 2017 Berry Brief at 30-33.) We disagree. In the first place, Berry was 

indicted and convicted of kidnapping under R.C. 2905.01(A)(3) (kidnapping with purpose 

to terrorize) rather than R.C. 2905.01(A)(4) (kidnapping with purpose to engage in sexual 

activity against the victim's will). (Indictment 6374 at 1; July 22, 2016 Kidnapping 

Verdict.) J.J.'s testimony supports the elements of kidnapping—that Berry inflicted 

physical and emotional harm on her in the form of the gun being pressed to her head, 

heart, and between the eyes while Berry uttered deadly threats. (Tr. Vol. 1 at 101-07.) 

This was followed by periods of quiescence for dinner, laundry, and cigarette smoking, 

before Berry referenced the earlier threat in order to intimidate J.J. into having sexual 

relations with him. (Tr. Vol. 1 at 107-15.) J.J.'s testimony supports a determination that 

the "harm that result[ed]" from the physical restraint involving the gun "is separate and 

identifiable" from the "harm that result[ed]" from being coerced into engaging in sexual 

acts with Berry. Ruff at paragraph two of the syllabus. Moreover, being forced to perform 

fellatio results in "separate and identifiable" harm from being forced to allow Berry to 

digitally penetrate her vagina. See State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) 

(holding that three rape charges arising from vaginal intercourse, cunnilingus, and digital 

penetration of the vagina did not merge because they were based on separate conduct). 

Under Ruff, "the conduct constitut[ing the rapes and kidnapping] offenses" resulted in 

"separate and identifiable" harms that were "offenses [were] of dissimilar import." Ruff at 

paragraphs two and three of the syllabus. 

The offenses were of dissimilar import and were not to be merged. We 

overrule Berry's first assignment of error. 

C. Second Assignment of Error—Whether the Trial Court Erred in Not 

Agreeing to Review J.J.'s Psychological Records In Camera 

The United States Supreme Court has explained that: 
23 

Nos. 16AP-659 and 16AP-660 

It is well settled that the government has the obligation to 

turn over evidence in its possession that is both favorable to 

the accused and material to guilt or punishment. United 

States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, [373 

U.S. 83,] 87 [(1963)]. Although courts have used different 

terminologies to define "materiality," a majority of this Court 

has agreed, "[evidence] is material only if there is a reasonable 

probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been 

different. A 'reasonable probability' is a probability sufficient 

to undermine confidence in the outcome." United States v. 

Bagley, 473 U.S. [667,] 682 [(1985)] (opinion of BLACKMUN, 

J.); see id., at 685 (opinion of WHITE, J.). 

Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). 

Based on this principle, the United States Supreme Court held that a 

defendant accused of raping his underage daughter had a right to have the trial judge 

review, in camera, the generally confidential Children and Youth Services file on the case 

to determine whether favorable material evidence was present. Id. at 58. In so doing, it 

rejected arguments that the defendant was not entitled to in camera review because he 

had not made a "particularized showing of what information he was seeking or how it 

would be material." Id. at 58, fn. 15. Requiring "particularized" arguments about the 

contents of records would place an unfair requirement on a party not privy to them. But 

the Supreme Court did recognize a need for "some plausible showing" to establish a "basis 

for [the] claim that [the file sought] contains material evidence." Id. Both the United 

States and Ohio Supreme Courts have held that the obligation of the prosecution to share 

favorable material evidence with the defense extends to information not in the actual 

possession of the prosecution but within the knowledge of "others acting on the 

government's behalf." State v. Sanders, 92 Ohio St.3d 245, 261 (2001), quoting Kyles v. 

Whitley, 514 U.S. 419, 437 (1995), citing United States v. Morris, 80 F.3d 1151, 1169 (7th 

Cir.1996). 

Berry's motion gave the trial court very little information. It did not explain 

what Berry expected or hoped to find in such records. (Mot. for in Camera Review at 2-4.) 

Obviously, psychiatric records could have been relevant if some plausible suspicion had 

been articulated that J.J.'s therapy related to a condition that could have impaired her 

ability to accurately recall events. Evid.R. 601(A). But the assertions in the motion instead 
24 

Nos. 16AP-659 and 16AP-660 

were merely that J.J.'s therapist notified the police following the incident, that J.J. was 

known to take medication, and that J.J. had admitted to being involuntarily committed 

(possibly for PTSD) during the pendency of the case. (Mot. for in Camera Review at 2-4.) 

None of these assertions amounts to a "plausible showing" that the evidence sought was 

favorable and material to Berry's defense such that the prosecutor would have had an 

obligation to obtain it and surrender it to the court for inspection. Ritchie at 58, fn. 15. In 

his motion, Berry also did not identify who possessed the records that he sought to have 

reviewed; nor did he state that such records were within the knowledge of persons acting 

on the government's behalf. Sanders at 261. It is not clear that a Brady or Ritchie

disclosure was even the proper vehicle for examining any such records (rather than, for 

example, a subpoena). See, e.g., Crim.R. 16(E)(1); Crim.R. 17. 

Berry's second assignment of error is overruled. 

D. Fifth Assignment of Error—Whether the Trial Court Erred in 

Consolidating the Rape and Kidnapping Case with the Conspiracy Case 

Crim.R. 13 provides that: 

The court may order two or more indictments or informations 

or both to be tried together, if the offenses or the defendants 

could have been joined in a single indictment or information. 

And Crim.R. 8(A) explains: 

Two or more offenses may be charged in the same indictment, 

information or complaint in a separate count for each offense 

if the offenses charged, whether felonies or misdemeanors or 

both, * * * are based on two or more acts or transactions 

connected together. 

But: 

If it appears that a defendant or the state is prejudiced by a 

joinder of offenses or of defendants in an indictment, 

information, or complaint, or by such joinder for trial together 

of indictments, informations or complaints, the court shall 

order an election or separate trial of counts, grant a severance 

of defendants, or provide such other relief as justice requires. 

Crim.R. 14. We review joinder decisions for abuse of discretion and where, as here, the 

opposition to joinder was not renewed at trial, for plain error. State v. Cameron, 10th 

Dist. No. 09AP-56, 2009-Ohio-6479, ¶ 36-37. 
25 

Nos. 16AP-659 and 16AP-660 

We find that the conduct in Berry's two cases were based on acts that were 

"connected together." Crim.R. 8(A). Berry would have had no need for "Smitty" to make 

J.J. "go away" or be "missing" if the first case had never existed. Thus the offenses could 

have been "charged in the same indictment, information or complaint" within the 

meaning of Crim.R. 8(A) and, therefore, pursuant to Crim.R. 13, the court could have 

properly ordered the two indictments to be tried together. 

However, a defendant may successfully sever even properly consolidated or 

joined cases pursuant to Crim.R. 14 if he can establish prejudice to his rights. State v. 

Lott, 51 Ohio St.3d 160, 163 (1990). 

In considering a criminal defendant's claim of prejudice 

resulting from the joinder of multiple offenses, a court must 

determine: "(1) whether evidence of the other crimes would be 

admissible even if the counts were severed; and (2) if not, 

whether the evidence of each crime is simple and distinct." 

State v. Hall, 10th Dist. No. 02AP-1198 (Sept. 30, 2003), quoting State v. 

Thomas, 10th Dist. No. 01AP-730 (Feb. 12, 2002); see also State v. Schaim, 65 Ohio St.3d 

51, 59 (1992). Because the two prongs in Hall and Schaim are conjunctive, "[i]f the 

evidence of other crimes would be admissible at separate trials, any 'prejudice that might 

result from the jury's hearing the evidence of the other crime in a joint trial would be no 

different from that possible in separate trials,' and a court need not inquire further." 

Schaim at 59, quoting Drew v. United States, 331 F.2d 85, 90 (D.C.Cir.1964). 

Evidence of the underlying kidnapping and rape allegations would have 

been relevant and admissible in the conspiracy case to explain Berry's motive. See Evid.R. 

404(B). Thus, with respect to that portion of the analysis, we need go no further. Schaim

at 59. But the converse question, whether the evidence in the conspiracy case would have 

been properly admissible in a separate trial of the underlying kidnapping and rape 

charges, is a closer question and thus we find it necessary to consider both prongs of Hall

and Schaim. 

The fact that Berry sought to silence J.J. through illegal means was evidence 

tending to show consciousness of guilt in the underlying kidnapping and rape case. 

Richey at 357. Though evidence of the conspiracy to make J.J. unavailable would have 

been relevant even in a stand alone trial for rape and kidnapping, the evidence could have 
26 

Nos. 16AP-659 and 16AP-660 

been excluded if its "probative value [were] substantially outweighed by the danger of 

unfair prejudice." See Evid.R. 403(A). The conspiracy to silence J.J. was indicative of 

consciousness of guilt but also theoretically consistent with a conclusion that Berry was 

frustrated because he believed himself falsely accused of the kidnapping and rape and he 

could be vulnerable to being wrongly convicted by a jury. For instance, there exists the 

psychological temptation to draw an impermissible inference that someone who conspires 

to kidnap might also commit kidnapping and rape. In State v. Roberts, the Supreme 

Court of Ohio remarked on the "tendency of some juries in complex trials not to segregate 

the proof required on each separate offense, but to convict for all crimes on the combined 

proof offered upon all offenses." 62 Ohio St.2d 170, 175 (1980). "Such convictions thus 

obtained, when the evidence if considered separately would be insufficient to sustain all 

the convictions, are improper." Id.

However, here we do not perceive a jury would have difficulty segregating 

as "simple and distinct" the evidence between whether Berry kidnapped and raped J.J. 

and whether he conspired to silence her. See Hall; Schaim at 59. Evidence on the 

conspiracy was acquired more than one year after the day of the underlying kidnapping 

and rape. It was acquired and testified to by different witnesses. It concerned differing 

behavior on different days. It also concerned behavior that differed in kind and character 

(attempting to hire someone to make a witness unavailable as compared to a severe 

incident of domestic violence). This case was not especially complicated, and the evidence 

could easily be segregated. Thus, we hold that the trial court did not abuse its discretion 

or commit plain error in consolidating the two cases, joining the offenses, and thereafter 

failing to sever them. 

Berry's fifth assignment of error is overruled. 

E. Sixth Assignment of Error—Whether Trial Counsel was 

Constitutionally Ineffective in Failing to Renew Opposition to Joinder 

and Consolidation 

Ineffective assistance of counsel claims are assessed using the twopronged approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). 

"First, the defendant must show that counsel's performance was deficient. * * * Second, 

the defendant must show that the deficient performance prejudiced the defense." Id. at 

687. The failure to make either showing defeats a claim of ineffective assistance of 
27 

Nos. 16AP-659 and 16AP-660 

counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (" 

'[T]here is no reason for a court deciding an ineffective assistance claim to approach the 

inquiry in the same order or even to address both components of the inquiry if the 

defendant makes an insufficient showing on one.' ") 

Because we found, with respect to Berry's fifth assignment of error, that 

the trial court did not abuse its discretion in consolidating, joining, and failing to sever the 

cases, we cannot find any prejudice in defense counsel's failure to renew the motion to 

sever during the trial. Therefore, we overrule Berry's sixth assignment of error. 

F. Seventh Assignment of Error—Whether the Trial Court Erred in 

Failing to Dismiss Juror Number Four 

Berry's argument to exclude juror number four relies on an exchange 

which occurred following a lunch recess during voir dire: 

[DEFENSE COUNSEL]: Judge, may it please the Court, 

before the jury is brought back in the courtroom, bring it to 

the Court's attention a possible challenge for cause on 

potential panel Juror No. 4, [Name Redacted]. If the Court 

would remember, she indicated that in response to [the 

prosecutor]'s examination that she would be biased and was 

not sure if she could be fair. So I would ask the Court to 

consider removing her for cause at this juncture. 

THE COURT: I will not remove her for cause at this juncture. 

Anything on behalf of the State? 

[THE PROSECUTOR]: No, Your Honor. 

(Tr. Vol. 1 at 34.) Because voir dire was not transcribed, neither the question nor the 

juror's actual responses were preserved. (Tr. Vol. 1 at 32-35.) 

"[A] bedrock principle of appellate practice in Ohio is that an appeals court 

is limited to the record of the proceedings at trial." Morgan v. Eads, 104 Ohio St.3d 142, 

2004-Ohio-6110, ¶ 13. Moreover, the Supreme Court of Ohio has clearly explained: 

The duty to provide a transcript for appellate review falls upon 

the appellant. This is necessarily so because an appellant 

bears the burden of showing error by reference to matters in 

the record. See State v. Skaggs (1978), 53 Ohio St. 2d 162. 

This principle is recognized in App. R. 9(B), which provides, 

in part, that "* * * the appellant shall in writing order from the 

reporter a complete transcript or a transcript of such parts of 

the proceedings not already on file as he deems necessary for 
28 

Nos. 16AP-659 and 16AP-660 

inclusion in the record * * *." When portions of the transcript 

necessary for resolution of assigned errors are omitted from 

the record, the reviewing court has nothing to pass upon and 

thus, as to those assigned errors, the court has no choice but 

to presume the validity of the lower court's proceedings, and 

affirm. 

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). While it is true that 

defense counsel offers his assertion that juror number four said she would be biased, and 

though it is obvious that a biased juror should be excused, "[w]e have long held that 

'statements of counsel are not evidence.' " RNG Props., Ltd. v. Summit Cty. Bd. of 

Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, ¶ 28, fn. 1, quoting Corporate Exchange 

Bldgs. IV & V, L.P. v. Franklin Cty. Bd. of Revision, 82 Ohio St.3d 297, 299 (1998). Thus, 

the record is devoid of any evidence demonstrating whether the juror was biased. 

Therefore, we must presume the regularity of the proceedings in the trial court and 

overrule this assignment of error. State ex rel. Bardwell v. Cuyahoga Cty. Bd. of 

Commrs., 127 Ohio St.3d 202, 2010-Ohio-5073, ¶ 14. 

Berry's seventh assignment of error is overruled. 

IV. CONCLUSION 

We overrule Berry's seven assignments of error. Therefore, we affirm the 

judgments of the Franklin County Court of Common Pleas. 

Judgments affirmed. 

KLATT and SADLER, JJ., concur.