[Cite as State v. Halstead, 2016-Ohio-290.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 102723 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

SHANNON W. HALSTEAD

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART, 

REVERSED AND REMANDED IN PART 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-588993-A 

BEFORE: Laster Mays, J., Jones, A.J., and Celebrezze, P.J. 

RELEASED AND JOURNALIZED: January 28, 2016 
-iATTORNEY FOR APPELLANT

Christopher M. Kelley 

75 Public Square, Suite 700 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Fallon Radigan 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J: 

{¶1} Defendant-appellant Shannon Halstead (“Halstead”) was convicted of 

felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony, felonious 

assault, in violation of R.C. 2903.11(A)(2), a second-degree felony, kidnapping, in 

violation of R.C. 2905.01(A)(3), a first-degree felony, and theft, in violation of R.C. 

2913.02(A)(1), a first-degree misdemeanor. The trial court sentenced Halstead to five 

years imprisonment on the two felonious assault convictions, five years imprisonment on 

the kidnapping conviction, and six months imprisonment on the theft conviction. All 

three sentences were to be run concurrently giving Halstead a total of five years 

imprisonment. 

{¶2} After a review of the record, assignment of errors one and two are overruled. 

We sustain assignment of error three, Halstead’s judgment of conviction is reversed, and 

this case is remanded to the trial court for resentencing on the merged counts. 

{¶3} Halstead assigns three errors for our review. 

I. The appellant’s convictions for felonious assault, kidnapping, and 

theft were against the manifest weight of the evidence. 

II. The trial court erred in giving a flight instruction to the jury because 

there was no evidence showing the appellant took affirmative steps to evade 

detection and apprehension by the police. 

III. The trial court erred in failing to merge the appellant’s convictions 

for felonious assault and kidnapping. 
I. Facts and Procedural Posture

{¶4} Halstead and the victim met on the bus when they were both returning home 

from their jobs. The victim was looking to purchase marijuana, and Halstead claimed 

that he knew someone that could sell it to the victim. In addition to purchasing the 

marijuana, the victim offered to help Halstead apply for a job at Olive Garden, where the 

victim worked. Because the application was online and, according to the victim, 

Halstead was unfamiliar with computers, he agreed to go to Halstead’s home and assist 

him in filling out the online application. 

{¶5} The victim testified that after he and Halstead got off the bus, Halstead 

robbed him at knife-point. Halstead demanded the victim’s chain, cell phone, and 

wallet, but the victim refused to give him the items. Halstead then knocked the victim to 

the ground and slashed his throat with the knife. During this altercation, a neighbor 

witnessed the fight, and threatened to release her dogs to stop the men from fighting. 

The neighbor testified that Halstead ran away down the street and the victim asked her for 

help. 

{¶6} When the victim was interviewed by the police, he described Halstead and 

picked him out of a photo array. The police also got a physical description of Halstead 

after viewing the surveillance video from the bus. Halstead was arrested three months 

later and found guilty of felonious assault, kidnapping, and theft. As a result, he filed 

this timely appeal. 
II. Manifest Weight of the Evidence 

{¶7} In reviewing a claim challenging the manifest weight of the evidence, the 

question to be answered is whether: 

there is substantial evidence upon which a jury could reasonably conclude 

that all the elements have been proved beyond a reasonable doubt. In 

conducting this review, we must examine the entire record, weigh the 

evidence and all reasonable inferences, consider the credibility of the 

witnesses, and determine whether 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. (Internal citations and quotations omitted.) 

 

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. 

{¶8} “Although a court of appeals may determine that a judgment of a trial court is 

sustained by sufficient evidence, that court may nevertheless conclude that the judgment 

is against the weight of the evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 

N.E.2d 541 (1997). 

“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, if, on weighing the evidence 

in their minds, they shall find the greater amount of credible evidence 

sustains the issue which is to be established before them. Weight is not a 

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

(Emphasis added.) Thompkins at 387. 

{¶9} “When a court of appeals reverses a judgment of a trial court on the basis that 

the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth 

juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” 
Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 

(1982). 

{¶10} In his first assignment of error, Halstead argues that his convictions were 

against the manifest weight of the evidence. “A manifest weight challenge questions 

whether the state met its burden of persuasion at trial.” State v. Bowden, 8th Dist. 

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 

Although an appellate court reviews credibility when considering the 

manifest weight of the evidence, the credibility of witnesses and the weight 

of the testimony are primarily for the trier of fact. The trier of fact is best 

able to view the witnesses and observe their demeanor, gestures, and voice 

inflections, and use these observations in weighing the credibility of the 

proffered testimony. 

State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting State v. 

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. 

{¶11} Halstead argues that because there was not any physical evidence placing 

him at the scene of the attack on the victim, he should not have been convicted. He 

argues that the victim’s testimony was inconsistent and false. The victim testified that 

Halstead used a knife to rob him of his chain and cell phone, but both of those items were 

found with the victim. The victim claims that Halstead ripped the box cutter from his 

hand, but DNA testing of the box cutter determined that only victim’s DNA was on the 

box cutter. The victim gave the police a description of the man who attacked him and 

described him as 5'7" wearing a white shirt, blue jeans, and carrying a red bag. Halstead 

is 6'1", was wearing a green sweatshirt, and not carrying a bag. 
{¶12} However eyewitness testimony places Halstead at the scene and as the one 

who attacked the victim. Halstead’s girlfriend’s aunt testified that Halstead told her that 

he stabbed the victim in self-defense. The victim testified that Halstead was the one 

who stabbed him. Because of these testimonies, the trier of fact, the jury, weighed the 

credibility of each witness and determined that the weight of the evidence was substantial 

enough to convict Halstead. His first assignment of error is overruled. 

III. Incorrect Jury Instruction 

{¶13} In his second assignment of error, Halstead argues that the trial court erred 

in giving a flight instruction to the jury because there was no evidence showing that he 

took affirmative steps to evade detection and apprehension by the police. “The giving of 

jury instructions is within the sound discretion of the trial court, and the appellate court 

can review it for an abuse of discretion.” State v. Howard, 8th Dist. Cuyahoga No. 

100094, 2014-Ohio-2176, ¶ 35. In this case, the trial court gave the following jury on 

flight: 

There may be evidence in this case to indicate that the defendant fled from 

the scene of the crime. Flight does not, in and of itself, raise a 

presumption of guilt, but may show consciousness of guilt or a guilty 

connection with the crime. If you find that the defendant did flee from the 

scene of this crime, you may consider the circumstance in your 

consideration of guilt or lack of guilt of the defendant. Tr. at 391. 

{¶14} “Similar versions of this flight instruction have been upheld by this court in 

numerous cases, including State v. Gibson, 8th Dist. Cuyahoga No. 98725, 

2013-Ohio-4372, State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, 

¶ 55, and State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949.” Howard
at ¶ 44. However, the instructions given in those cases were upheld because the evidence 

demonstrated that the instruction was warranted. Id. But this court has held that, 

a mere departure from the scene of the crime is not to be confused with 

deliberate flight from the area in which the suspect is normally to be found. 

It must be clear that the defendant took affirmative steps to avoid detection 

and apprehension beyond simply not remaining at the scene of the crime for 

purposes of a flight instruction. 

State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 45. 

{¶15} Recently this court held in State v. Johnson, 8th Dist. Cuyahoga No. 99715, 

2014-Ohio-2638, ¶ 110, that the defendant’s conduct of leaving the scene of the crime did 

not warrant a flight instruction because there was no evidence of deliberate flight in the 

sense of evading police. See also State v. Wesley, 8th Dist. Cuyahoga No. 80684, 

2002-Ohio-4429 (flight instruction not warranted based on insufficient evidence). Much 

like in Johnson, the evidence in this case did not warrant a flight instruction. Halstead’s 

leaving the scene was not deliberate flight in the sense of evading police and detection. 

There is not any evidence that Halstead was evading the police. That state’s only 

assertion to support that Halstead evaded the police is that he left the scene of the crime. 

We find that is not enough. 

{¶16} Despite the court’s error, we cannot say, nor has Halstead demonstrated, that 

the error was prejudicial. “A reviewing court may not reverse a conviction in a criminal 

case due to jury instructions unless it is clear that the jury instructions constituted 

prejudicial error.” Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 49. 

“In order to determine whether an erroneous jury instruction was prejudicial, a reviewing 
court must examine the jury instructions as a whole.” Id. “A jury instruction 

constitutes prejudicial error where it results in a manifest miscarriage of justice. 

Conversely, any error, defect, irregularity, or variance which does not affect substantial 

rights shall be disregarded.” Id. 

{¶17} Reviewing the jury instructions as a whole, we cannot say that the trial 

court’s instruction on flight was prejudicial, such that a manifest miscarriage of justice 

occurred. The instruction given, although improper, allowed the jury to make its own 

conclusions on flight and to consider whether Halstead left the scene and, if so, his 

motivation for leaving. Thus, the instruction did not change the underlying facts of the 

case; the instruction was harmless beyond a reasonable doubt. Halstead’s second 

assignment of error is overruled. 

IV. Merged Convictions 

{¶18} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the 

Ohio Supreme Court recently clarified the test a trial court and a reviewing court must 

employ in determining whether offenses are allied offenses that merge into a single 

conviction, stating: 
When the defendant’s conduct constitutes a single offense, the defendant 

may be convicted and punished only for that offense. When the conduct 

supports more than one offense, however, a court must conduct an analysis 

of allied offenses of similar import to determine whether the offenses merge 

or whether the defendant may be convicted of separate offenses. R.C. 

2941.25(B). A trial court and the reviewing court on appeal when 

considering whether there are allied offenses that merge into a single 

conviction under R.C. 2941.25(A) must first take into account the conduct 

of the defendant. In other words, how were the offenses committed? If 

any of the following is true, the offenses cannot merge and the defendant 

may be convicted and sentenced for multiple offenses (1) the offenses are 

dissimilar in import or significance — in other words, each offense caused 

separate, identifiable harm; (2) the offenses were committed separately, and 

(3) the offenses were committed with separate animus or motivation. At 

its heart, the allied-offense analysis is dependent upon the facts of a case 

because R.C. 2941.25 focuses on the defendant’s conduct. The evidence 

at trial or during a plea or sentencing hearing will reveal whether the 

offenses have similar import. When a defendant’s conduct victimizes 

more than one person, the harm for each person is separate and distinct, and 

therefore, the defendant can be convicted of multiple counts. Also, a 

defendant’s conduct that constitutes two or more offenses against a single 

victim can support multiple convictions if the harm that results from each 

offense is separate and identifiable from the harm of the other offense. 

We therefore hold that 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. 

Id. at ¶ 24-26. 

{¶19} In his third assignment of error, Halstead argues that the trial court erred in 

failing to merge his convictions for felonious assault and kidnapping. In order to 

determine whether offenses should merge as the same offense, it must first be determined 

if each offense caused separate or identifiable harm, were committed separately, or were 

committed with separate animus or motivation. The state argues that while Halstead was 

stabbing the victim, because he was on top of the victim, he restrained his movements, 
thereby kidnapping him. We disagree with the state’s assertion. The kidnapping and 

felonious assault were part of the same animus and caused the same harm. These 

offenses were not committed separately but rather at the same time. Therefore, these 

offenses should be merged. 

{¶20} The trial court incorrectly sentenced Halstead to five years for both the 

felonious assault convictions and kidnapping convictions, and ran the sentences 

concurrently. 

If, upon appeal, a court of appeals finds reversible error in the imposition of 

multiple punishments for allied offenses, the court must reverse the 

judgment of conviction and remand for a new sentencing hearing at which 

the state must elect which allied offense it will pursue against the defendant. 

On remand, trial courts must address any double jeopardy protections that 

benefit the defendant. 

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25. 

Therefore, we reverse the judgment conviction and remand for a new sentencing hearing, 

at which the state must elect which allied offense it will sentence Halstead. 

{¶21} Judgment affirmed in part, reversed and remanded in part to the lower court 

for further proceedings consistent with this opinion. 

 It is ordered that appellee and appellant split costs herein taxed. The court finds 

there were reasonable grounds for this appeal. 

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

pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

____________________________________________ 

ANITA LASTER MAYS, JUDGE 

LARRY A. JONES, SR., A.J., and 

FRANK D. CELEBREZZE, JR., P.J., CONCUR