STATE OF OHIO

Plaintiff-Appellee

CASP NO, ^

vs.

DANIEL SIMMONS

Defendant-Appellant,

14UPREME COURT O^ OHIO

ON APPEAL FROM THECOURT OF APPEALS FORCUYAHOGA COUNTY. EIGHTHAPPELLATE DISTRICT

COURT OF APPEALSCASE NO: 96208

OF APPELLANT

PAUL MANCINO, JR. (0015576)75 Public SquareSte. 1016Cleveland, Ohio 44113-2098(216) 621-1742(216) 621-8465 (Fax)

Counsel for Defendant-Appellant

WILLIAM D. MASONAttorney for Plaintiff-AppelleeCourts Tower/Justice Center1200 Ontario StreetCleveland; Ohio 44113(216) 443-7800(216) 698-2270 (Fax)

Counsel for Plaintiff-Appel%e

D C ' --^.

^^c^ DAN 3 GI 2012

CLERK OF COURTUPRENdE UOURT OF OHIO

,iAN 3 "°1 Z01Z

c€_tKK { r c00HTSUPFtME COURT OF 0HI0

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS ONE OF GREAT GENERAL AND PUBLICINTEREST AND RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW:PROPOSITION OF LAW NO. IA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHENEXCULPATORY EVIDENCE HAS NOT BEEN PRESERVED BY THEPROSECUTION WHICH HAD BEEN PREVIOUSLY USED BY THEPROSECUTION IN A PRIOR HEARING IN THE SAME CASE.

PROPOSITION OF LAW NO. IIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN HE HASBEEN DENIED A SPEEDY TRIAL WHERE HE HAS BEEN IN PRISON FOR APERIOD OF TIME PRIOR TO TRIAL.

PROPOSITION OF LAW NO. IIIA DEFENDANT HAS BEEN DUE PROCESS OF LAW WHEN A COURT ALLOWSA NURSE PRACTITIONER TO TESTIFY AS AN EXPERT WITNESS IN MATTERSBEYOND HER EXPERTISE.

PROPOSITION OF LAW NO. IVA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURTCONVICTED DEFENDANT OF FELONIOUS ASSAULT INVOLVING SERIOUSPHYSICAL HARM

PROPOSITION OF LAW NO. VA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THERE ISINSUFFICIENT EVIDENCE TO CONVICT A DEFENDANT OF A LESSEROFFENSE OF ABDUCTION.

Page1

PROPOSTFION OF LAW NO. VIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURTAMENDED THE INDICTMENT BY FINDING DEFENDANT GUILTY OF ABDUCTIONWHICH WAS NOT A LESSER INCLUDED OFFENSE OF KIDNAPPING.

PROPOSITION OF LAW NO. VIIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN DEFENDANTHAD BEEN FOUND GUILTY OF DOMESTIC VIOLENCE WHEN THERE WAS ANABSENCE OF EVIDENCE TO ALL ELEMENTS.

PROPOSITION OF LAW NO. VIIIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WIMN HE WASSUBJECTED TO MULTIPLE PUNISHMENTS WHEN THE COURT SENTENCEDDEFENDANT FOR FELONIOUS ASSAULT, DOMESTIC VIOLENCE AND ABDUCTIONARISING OUT OF THE SAME INCIDENT.

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PROPOSITION OF LAW NO. IXA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURTAWARDS RESTITUTION WHERE THAT ISSUE HAS BEEN CONTESTED BY THEPARTIES.

SERVICEAPPENDIX

APPENDIX

AppendixA State v. Simmons Case No. 96208 (Dec. 20,2011)Order of Court of Appeals Overruling Reconsideration

Appendix B State v. Simmons Case No. 96208 (Dec. 20, 2011)Journal Entry and Opinio (Nov. 23, 2011)

AUTHORITIES

Barker v. Winfzo, 407 U.S. 514, 530-33 (1972)

Califomia v. Trombetta, 467 U.S.479, 488 (1984).

Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993).

Ex Parte Bain, 121 U.S. 9-10 (1887)

In re Winshin, 397 U.S. 358, 364 (1970)

Jackson v. Virginia, 443 U.S. 307, 319 (1979)

Kumho Tire Co. V. Carmichael, 526 U.S. 137, 141 (1999).

Ohio v. Johnson. 467 U.S. 493, 498 (1984).

State v. Boees, 89 Ohio App.3d 206, 211, 624 N.E.2d 204, 208 (1993)

State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368, 1370 (1986).

State v. Cloud, 122 Ohio App.3d 626, 702 N.E.2d 500 (1977).

State v. Fleming, 114 Ohio App.3d 294, 683 N.E.2d 79 (1996)

State v. Hudson, 86 Ohio App.3d 113, 619 N.E.2d 1190 (1993).

State v. Ivev, 98 Ohio App.3d 249, 255-56, 648 N.E.2d 519, 524 (1994)

State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, 2010-Ohio-6314 (2010)

State v. Lee, 48 Ohio St.2d 208, 209, 357 N.E.2d 1095, 1096 (1976)

P.aee13

1314

14

15

7

11

State v. McDonald, 153 Ohio App.3d 679, 683-84, 795 N.E.2d 701, 703-04 (2003).

State v. O'Neil, 81 Ohio App.3d 305, 610 N.E:2d 1087 (1992).

State v. Pachav; 64 Ohio St.2d 218, 221, 416N.E>2d 589, 591 (1980).

State v: Pudloek, 44 Ohio St.2d 104, 106, 338 N.E.2d 524, 525 (1975)

State v: Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997)

Stirone v. United States, 361 U.S. 212, 217-19 (1960)

Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).

Ohio Revised Code:§2905.02§2929.18(A)(1)§2945.71(E).§2945.71 to §2945.73

Pa¢e

101377

III

EXPLANATION OF WHY THIS CASE IS ONE OF GREAT GENERAL AND PUBLICINTEREST AND RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This matter should be considered by the Ohio Supreme Court as the result of

differences and conflicting decisions by different Courts of Appeals, including the same

Court of Appeals for Cuyahoga County which decided this case.

The Court of Appeals, in considering whether serious physical harm had been

proven relied on a decision of the Court of Appeals for the Ninth District, State v. Smith,

Case Nos. 23468 and 23464, 2007-Ohio 5424. This was significant as the Court of

Appeals for Cuyahoga County did not even mention or attempted to distinguish decisions

by the same court concerning similar cases and issues and a determination whether

serious physical harm had been proven.

This indictment arose after defendant and Marley Kichinka, who had an on and off

relationship with defendant were drinking on the evening of June 4, 2010. Although

admitting that she was not intoxicated she admitted that she was buzzed. (Tr.70-71).

According to Kichinka, defendant put his hands on her and choked her after they returned

to the home. (Tr.73). Kichinka complained that defendant slapped her and punched her

and she fell while they were on the porch.

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examined she was released and the diagnosis were one of pregnancy, facial contusion,

cervical strain and abrasions. She was admitted to the hospital on June 5, 2010 around

12:20 p.m. when she was seen by a physician or triage nurse around 1:55 p.m. Later that

day she was discharged around 4:00 p.m. (Exhibit 1). The court ruled that the

petpetechiae on Kichinka's neck was not proven beyond a reasonable doubt. (Tr.326).

While the court found defendant guilty of felonious assault for inflicting serious

physical harm this based on her injuries do not constitute, as a matter of law, serious

physical harm. The court even fund insufficient evidence that it could not find that the

1

restraint was for the purpose of "inflicting serious physical harm." (Tr.324).

The Court of Appeals, in State v. Enovitch, Case No. 72827 (Aug. 20, 1998), ruled

that eleven (11) stitches and a scar do not establish serious physical harm:

We also conclude that the state failed to present sufficientevidence of serious physical harm to support Enovitch'sconviction for the felonious assault of Jason Gartman. At trial,Gartman described his injuries as a painful swollen ear and acut over his right eye which required eleven stitches. Hestated that there was still a scar over his right eye and that"the scar will not go away as far as I've been told."{Tr.309). Enovitch argues that Gartman's injuries did notconstitute "serious physical harm" because there was nocompetent evidence that the scar was permanent. The stateargues that the scar constituted "permanent disfigurement"sufficient to constituted serious physical harm under R.C.2901.01(A)(5)(d). They also argued that the mere fact thatGartman sought treatment at the hospital was enough toestablish serious physical harm. We disagree.

Other than Gartman's statement, there was no evidence at trial that the scarabove his eye was permanent. There is no evidence as to who told him thescar would not go away or that the person was qualified to make such adetermination. The hospital records described his injury as just over 1.5centimeters in length and as a "burst-type injury, clean, shallow, notparticularly jagged." The hospital discharge instructions characterized theinjury as "minor." Based upon the evidence presented, we conclude thatGartman's injury did not constitute the serious physical harm required for afelonious assault conviction. Accordingly, Enovitch's second assignment oferror is well taken.

Facial cuts have been held not to constitute serious physical harm. State v. O'Ne

81 Ohio App.3d 305, 610 N.E.2d 1087 (1992). In another case the court ruled that a

bruised left eyelid, bruises, welts, and lacerations caused by slapping the buttocks and

lower legs, together with a swollen hand, did not constitute serious physical harm. State

v. Ivev, 98 Ohio App.3d 249, 255-56, 648 N.E.2d 519, 524 (1994).

Second, the court ruled that it was proper to convict defendant of abduction when

he was charged with kidnapping. In making this ruling, the court ruled that an indictment

could be amended. However it cannot be amended to an offense which would not be a

lesser included offense. Although the court stated that it was a lesser included offense this

is belied by the record in the findings by the court in this regard.

2

in count 1 of the indictment defendant was charged with kidnapping which alleged

that defendant:

did, by force, threat, or deception, purposely remove Marley Kichinka fromthe place where she was found or restrain the liberty of her for the purposeof terrorizing or inflicting serious physical harm upon Marley Kichinka oranother.

At trial defendant was found not guilty of kidnapping but guilty of the lesser offense

of abduction. The court ruled:

In looking at this, did consider the lesser offenses, both lesserincluded and pursuant to 2905.02, section B, reads: no person without theprivilege to do so shall knowingly do any of the following, by force or threat,restrain the liberty of anotherperson under circumstances that create the riskof physical harm to the victim or place or create - - let me read that again.

Create a risk of physical harm to the victim or place the other personin fear. The facts clearly support that she was restrained, that she wasplaced in fear. So I find that the State did prove the crime of abduction, didnot prove the crime of kidnapping. So - - and I found that the State did meettheir burden to prove beyond a reasonable doubt.

So the lesser offense of abduction the defendant is found guilty.(Tr.324).

The court ruled that it could not "find that that was for the purpose of terrorizing

or inflicting serious physical harm." (Tr.324)

In these circumstances certainly abduction was not a lesser included offense of

kidnapping as alleged in the indictment. Since the original indictment charged defendant

by "force, threat or deception" and removing Marley Kichinka then he could not be found

guilty of the offense of abduction which in these circumstances was not a lesser included

offense. See State v. Fleming, 114 Ohio App.3d 294, 683 N.E.2d 79 (1996); State v.

Hudson, 86 Ohio App.3d 113, 619 N.E.2d 1190 (1993).

Thus this was an unconstitutional amendment of the indictment. Stirone v. United

States, 361 U.S. 212, 217-19 (1960). See Ex Parte Bain, 121 U.S. 9-10 (1887).

A more substantial violation in this case is that the defendant could not be

constitutionally convicted of an offense that is not a lesser included offense. To allow such

a conviction to stand would violate defendant's constitutional rights. Accordingly the

3

conviction of felonious assault must be vacated and that count dismissed.

A similar claim was considered by the court in State v. Moore, 145 Ohio App.3d

213, 762 N.E.2d 430 (2001). In Moore defendant was indicted for carrying a concealed

weapon. After a bench trial defendant was convicted of carrying a weapon while

intoxicated. On appeal the Court of Appeals ruled that the offense of carrying a weapon

while intoxicated was not a lesser included offense of carrying a concealed weapon.

Therefore, this indictment has not been properly amended and defendant's conviction

could not stand.

The Court of Appeals ruled that a merger of the offenses was not applicable.

However the indictment did not differentiate between any particular act of either

kidnapping, felonious assault or domestic violence. Thus it would be improper to convict

defendant without some differentiation in the indictment and charging papers.

A similar claim was recently considered in State v. Jackson, Case No. 95920,

2011-Ohio-5920. In Jackson the defendant was indicted and charged with felonious

assault, domestic violence and child endangering. The indictment in Jackson merely

tracked the language of the statute and did not set forth any factual basis for the charges.

The Court of Appeals of Cuyahoga County reversed the conviction because it could not

determined which act constituted which offense.

4

STATEMENT OF THE CASE AND FACTS

On June 23, 2010 defendant was indicted in a three count indictment. Defendant

was charged with one count of kidnapping, one count of felonious assault and one count

of domestic violence occurring between June 4, 2010 and June 5, 2010 involving Marley

Kichinka. The count of kidnapping and felonious assault contained a notice of a prior

conviction and repeat violent offender specification. Defendant, at his arraignment entered

a plea of not guilty.

Defendant waived a trial by jury and the'matter was heard by the court.

At trial defendant was found guilty of abduction under the kidnapping count along

with a notice of prior conviction and a repeat violent offender specification. The court found

defendant guilty of felonious assault and guilty of domestic violence.

Defendant was thereafter sentenced to five (5) years consisting of two (2) years on

count one, three (3) years on count two along with a six (6) month sentence on count three.

Defendant was ordered to serve a five (5) year mandatory term of post-release control.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAWPROPOSITION OF LAW NO. I

A DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHENEXCULPATORY EVIDENCE HAS NOT BEEN PRESERVED BY THE PROSECUTION

WHICH HAD BEEN PREVIOUSLY USED BY THE PROSECUTION IN A PRIORHEARING IN THE SAME CASE.

In this case theprosecutor brought a motion to terminate phone privileges of

defendant and to limit phone privileges. At a hearing the prosecutor played a recording

allegedly between defendant and Marley Kichinka from the Cuyahoga Countyjail. (Tr.7-8).

Thereafter when the case came on for trial defense counsel complained that that

exculpatory evidence had been lost and the prosecutor was unable to explain the non-

existence of the tape recording that had been previously played for the court. (Tr.40-41).

The government had a constitutional duty to preserve evidence that might be

expected to play a significant roll in the defense of a suspect. That evidence must possess

exculpatory value, which was apparent before the evidence was destroyed and be of such

nature that defendant would be unable to obtain comparable evidence by other means.

California v. Trombetta, 467 U.S.479, 488 (1984).

Since the court was unable to recall the contents of the phone call that evidence

could not be used or duplicated by defendant. The court candidly acknowledged it could

remember what was said on the taped phone call. (Tr.41-42). In any event that evidence

was unavailable to defendant. Its destruction constituted a denial of due process of law.

PROPOSITION OF LAW NO. IIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN HE HAS BEENDENIED A SPEEDY TRIAL WHERE HE HAS BEEN IN PRISON FOR A PERIOD OF

TIME PRIOR TO TRIAL.

Defense counsel made a motion to dismiss for the lack of a speedy trial. Defense

counsel pointed out that defendant had been in jail for 150 days and his right to a speedy

trial had expired. The prosecutor claimed that it had not expired and that only 62 days of

the 90 days had expired. (Tr.45). The court overruled the motion to dismiss. (Tr.45).

However this was an improper resolution of that claim. Counsel had clearly shown that

defendant had remained in jail on this charge for more than 90 days. This triggered a more

probing inquiry to any periods of time that may have been tolled. A summary denial of this

by the court certainlywas in error.

When defendant "...alleged in his motion that he was incarcerated 'solely on

this pending charge' and then demonstrated he was not brought to trial within the

limits imposed by the triple-count provision, he presented a pr ima facie case for

discharge. At that point a burden of production arose whereby the state became

obligated to produce evidence demonstrating [defendant] was not entitled to be

brought to trial within the limits of R.C.2945.71(E). .. ." State v. Butcher, 27 Ohio St.3d

28, 30-31, 500 N.E.2d 1368, 1370 (1986).

The speedy trial provisions contained in §2945.71 to §2945.73 of the Ohio Revised

Code are mandatory and must be strictly complied with by the trial court. State v. Cloud,

122 Ohio App.3d 626, 702 N.E.2d 500 (1977). This "strict enforcement has been

grounded in the conclusion that the speedy trial statutes implement the

constitutional guarantee of a public speedy trial. " State v. Pachav, 64 Ohio St.2d

218, 221, 416 N.E.2d 589, 591 (1980).

The Ohio Supreme Court has noted that any attempt to circumvent the speedy trial

nroviGions throuah anv form of machination would violate defendant's soeedv trial riahts.

State v. Pud/ock, 44 Ohio St.2d 104, 106, 338 N.E.2d 524,525 (1975) ("practices which

undercut the implementation of the `speedy trial' provisions within R.C.2945.71 and

2945.73 must not be employed to extend the requisite time periods."); State v. Lee,

48 Ohio St.2d 208, 209, 357 N.E.2d 1095, 1096 (1976) ("Practices which are used to

undercut R.C.2945.71 and 2945.73 must not be used to extend the requisite time

limits. ..."). State v. McDonald, 153 Ohio App.3d 679, 683-84, 795 N.E.2d 701, 703-04

(2003). See Barker v. lNinaA, 407 U.S. 514, 530-33 (1972).

PROPOSITION OF LAW NO. IIIA DEFENDANT HAS BEEN DUE PROCESS OF LAW WHEN A COURT ALLOWS A

NURSE PRACTIONER TO TESTIFY AS AN EXPERT WITNESS IN MATTERSBEYOND HER EXPERTISE.

The state called Elizabeth Petitt as a witness. (Tr.158). However she was allowed

to express opinions well beyond her ability or qualifications as an expert witness.

The court allowed Elizabeth Petitt, a registered nurse and sexual assault nurse, to

testify to matters well beyond the scope of any expertise she may possess. She testified

she was a registered nurse and sexual assault nurse examiner. She had experience as

a family nurse practitioner. (Tr.159). Although there was no claim of any sexual assault

she became in contact with Marley Kichinka to let her know she was there for her and to

educate her that she was in a safe environment. (Tr.166). She observed, contrary to what

the medical records show, that there was petechiae which were broken blood vessels

under the skin on the neck and face. (Tr.1 67). Petitt testified that petechiae was consistent

with strangulation. (Tr.168). She testified that she examined other domestic violence

patients who have exhibited petechiae. However seeing petechiae gave her cause for

concern. (Tr.169). Her claim that strangulation could be lethal. (Tr.170).

The court should not have allowed this testimony. Defense counsel moved that the

testimony from Petitt be stricken. This motion was overruled. (Tr.202).

It should be noted that the medical reports did not show any evidence of petechiae

by the examining physician and the claim that there was a CATscan shows on the medical

records to have been cancelled. (Exhibiti ).

Thus her opinions which only came from her observation should not have been

allowed. Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993). See

Kumho Tire Co. V. Carmichael, 526 U.S. 137, 141 (1999).

8

PROPOSITION OF LAW NO. IVA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURT

CONVICTED DEFENDANT OF FELONIOUS ASSAULT INVOLVING SERIOUSPHYSICAL HARM

Count 2 of the indictment alleged that defendant, between June 4, 2010 to 6/5/2010

"knowingly cause[d] serious physical harm to Marley Kichinka." However the

evidence submitted does not support the claim that Marley Kichinka suffered "serious

physical harm."

This complaint arose afterthe parties had been out drinking on the evening of June

4, 2010. Although admitting that she was not intoxicated she admitted that she was

buzzed. (Tr.70-71). According to Kichinka, defendant put his hands on her and choked her

after they returned to the home. (Tr.73). Kichinka complained that defendant slapped her

and punched her and she fell while they were on the porch. During the struggle she got

a black eye. (Tr.74).

On June 5, 2010 she went to the emergency room at Fairview Hospital. After being

examined she was released and the diagnosis were one of pregnancy, facial contusion,

cervical strain and abrasions. She was admitted to the hospital on June 5, 2010 around

12:20 p.m. when she was seen by a physician or triage nurse around 1:55 p.m. Later that

day she was discharged around 4:00 p.m. (Exhibit 1). The court ruled that the

petpetechiae on Kichinka's neck was not proven beyond a reasonable doubt. (Tr.326).

While the court found defendant guilty of felonious assault for inflicting serious

physical harm this based on her injuries do not constitute, as a matter of law, serious

physical harm. The court even fund insufficient evidence that it could not find that the

restraint was for the purpose of "inflicting serious physical harm." (Tr.324).

Facial cuts have been held not to constitute serious physical harm. State v. O'Ne

81 Ohio App.3d 305, 610 N.E.2d 1087 (1992). In another case the court ruled that a

bruised left eyelid, bruises, welts, and lacerations caused by slapping the buttocks and

lower legs, together with a swollen hand, did not constitute serious physical harm. State

9

v. lvev, 98 Ohio App.3d 249, 255-56, 648 N.E.2d 519, 524 (1994). Jackson v. Virainia,

443 U.S. 307, 319 (1979).

PROPOSITION OF LAW NO. VA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THERE IS

INSUFFICIENT EVIDENCE TO CONVICT A DEFENDANT OF A LESSER OFFENSEOF ABDUCTION.

At trial defendant was found not guilty of kidnapping but guilty of the lesser offense

of abduction. This was improper because there was insufficient evidence to sustain a

conviction for abduction. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Marley Kichinka

stayed in the apartment all night and nothing occurred after the alleged encounter with

defendant in the apartment.

In count 1 of the indictment defendant was charged with kidnapping which alleged

that defendant:

did, by force, threat, or deception, purposely remove Marley Kichinka fromthe place where she was found or restrain the liberty of her for the purposeof terrorizing or inflicting serious physical harm upon Marley Kichinka oranother.

At trial the court found that defendant had restrained Marley Kichinka. However, the

court stated that it could not "find that that was for the purpose of terrorizing or

inflicting serious physical harm." (Tr.324). Thereafter the court found defendant guilty

of abduction in violation of §2905.02 of the Ohio Revised Code because she was placed

in fear. (Tr.324). This conflicted with the previous finding that there was no proof that any

restraint was for the purpose of terrorizing Marley Kichinka. (Tr.324). Based on this, the

court could not find defendant guilty of abduction because, to terrorize, one would

necessarily be subsumed within placing "the other person in fear." Defendant was

denied due process of law when he was- convicted of this offense for which proof beyond

a reasonable doubt was not offered. In re Winshin, 397 U.S. 358, 364 (1970). See

Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).

10

PROPOSITION OF LAW NO. VIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURTAMENDED THE INDICTMENT BY FINDING DEFENDANT GUILTY OF ABDUCTION

WHICH WAS NOT A LESSER INCLUDED OFFENSE OF KIDNAPPING.

In these circumstances certainly abduction was not a lesser included offense of

kidnapping as alleged in the indictment. Since the original indictment charged defendant

by "force, threat or deception" and removing Marley Kichinka then he could not be found

guilty of the offense of abduction which in these circumstances was not a lesser included

offense. See State v. Flemina, 114 Ohio App.3d 294, 683 N.E.2d 79 (1996); State v.

Hudson, 86 Ohio App.3d 113, 619 N.E.2d 1190 (1993).

Thus this was an unconstitutional amendment of the indictment. Stirone v. United

States, 361 U.S. 212, 217-19 (1960). See Ex Parte Bain, 121 U.S. 9-10 (1887).

PROPOSITION OF LAW NO. VIIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN DEFENDANT

HAD BEEN FOUND GUILTY OF DOMESTIC VIOLENCE WHEN THERE WAS ANABSENCE OF EVIDENCE TO ALL ELEMENTS.

The court found defendant guilty of domestic violence as alleged in count 3 as

follows:

As to domestic violence, which is merely knowingly cause or attemptto cause physical harm to a family member. Marley Kichinka well - - orhousehold member, and they certainly demonstrated the household aspectof it. They lived together, shared expenses. All those -- both claims to paythe expenses themselves. They lived together. Clearly a householdmember. So that is also proven beyond a reasonable doubt. (Tr.327).

This was insufficient and did not comport with all the elements of the offense.

Therefore it violated due process of law. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The fact that defendant and Marley Kichinka lived together and paid expenses is

insufficient. The state was required to prove the essential elements of "cohabitation."

That term was defined by the Supreme Court in State v. Williams, 79 Ohio St.3d 459, 683

N.E.2d 1126 (1997):

The essential elements of "cohabitation" are (1) sharing of familial orfinancial responsibilities and (2) consortium. ...

11

In order to establish "consortium" more than sharing expenses is required:

Factors that might establish consortium include mutual respect, fidelity,affection, society, cooperation, solace, comfort, aid of each other, friendshipand conjugal relations. 79 Ohio St.3d @ 465, 683 N.E.2d 1130.

Since the court did not find that there were "conjugal relations", there cannot be

evidence of cohabitation needed to sustain a conviction for domestic violence. Accordingly

that determination was contrary to law and in violation of defendant's constitutional right

that guilt be proven beyond a reasonable doubt.

PROPOSITION OFiAW NO. VIIIA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN HE WASSUBJECTED TO MULTIPLE PUNISHMENTS WHEN THE COURT SENTENCED

DEFENDANT FOR FELONIOUS ASSAULT, DOMESTIC VIOLENCE ANDABDUCTION ARISING OUT OF THE SAME INCIDENT.

Atsentencing defense counsel brought up the subject of inergerand allied offenses.

(Tr.337). However the court nevertheless sentenced defendant to three (3) years for

felonious assault and six (6) months for domestic violence. (Tr.345). This was erroneous.

Clearlythe domestic violence which involved inflicting orattempting to inflict physical

harm would be subsumed within the felonious count of the indictment. Therefore separate

sentences could not be imposed.

Moreover domestic violence would be subsumed within felonious assault. No

separate sentence could be imposed.

Thus, the pronouncement in State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d

1061, 2010-Ohio-6314 (2010) is applicable:

when determining whether two offenses are allied offenses of similarity aresubject to merger under R.C.2941.25, the conduct of the accused must beconsidered. ...

The failure to do so in this instance subjected defendant to multiple punishments

in violations of the Fifth Amendment. Ohio v. Johnson. 467 U.S. 493, 498 (1984).

12

PROPOSITION OF LAW NO. IXA DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE COURTAWARDS RESTITUTION WHERE THAT ISSUE HAS BEEN CONTESTED BY THE

PARTI ES.

which any party may present evidence and then argue inferences therefrom. ..."

At sentencing, the victim, Marley Kichinka did not appear. The prosecutor stated

that Marley Kichinka requested restitution. Thereafter the following occurred:

THE COURT: There was no insurance?MS. HEIBERTSHAUSEN: She had no income. In fact, the collection

agencies are trying to recover against her now. (Tr.336)

However, the medical records, Exhibit 1, shows that there was insurance from the

Safe Program in Columbus, Ohio. Consequently there was a dispute and defense counsel

did dispute the restitution. (Tr.336).

Section 2929.18(A)(1) of the Ohio Revised Code provides that "If the court

decides to impose restitution the court shall hold a hearing on restitution if the

offender, victim or survivor disputes the amount. ..." This could not be considered a

hearing in that sense.

One court has stated that "A `hearing' usually envisions a proceeding during

State v. Boaas, 89 Ohio App.3d 206, 211, 624 N.E.2d 204, 208 (1993).

PAUL MANCINO, JR^' 015576)Attorney for Defenda Appellant75 Public Square, #1016Cleveland, Ohio 44113-2098(216) 621-1742(216) 621-8465 (Fax)

SERVICEA copy of the foregoing Memorandum in Support of Jurisdic ' n ha been sent

A^yll' Mason, Attorney for Plaintiff-Appellee, on t of2042 . 1,7i

PAUL MANCINO, JR. (^015576)Attorney for Defendant^J,Pppellant

DxnSimmons.SplmMemoll

13

Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

STATE OF OHIO

Appellee COA NO. LOWER COURT NO.96208 CP CR-538775

COMMON PLEAS COURT-vs-

DANIEL SIMMONS

Appellant MOTION NO. 450040

Date 12/20/11

Journal Entry

Motion by appellant for reconsideration is denied.

RECEIVED FOR FILIPlG

i^=:: 2 A 2 0 11GERALD i . 'r UE.RST

CLERKr,p° 7^E COURT OF.APPEALSBY `-'.UEp,

Presiding Judge PATRICIA A. BLACKMON,Concurs

Judge COLLEEN CONWAY COONEY, Concurs

47 9Yolfl 7 4 4 PGti

Court of ZfppPaYz of ebiDEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 96208

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DANIEL SIMMONS

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-538775

BEFORE: Stewart, J., Blackmon, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: November 23, 2011

APPENDIXB

-i-

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.75 Public Square, Suite 1016Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

By: T. Allan RegasAssistant County ProsecutorThe Justice Center1200 Ontario Street, 8th FloorCleveland, OH 44113

FiLl t3 iaNL) JOURNALIZED

I PER R:PP.F2, 22(0)

faOi! 2 3 2011

CEFiw,LU E. I'UEnSiCLEP,K 0^ TWE T OF APPEAL^P,Y..,_. ..._.e. DE.p,

-1-

MELODY J. STEWART, J.:

Defendant-appellant, Daniel Simmons, appeals from convictions for

felonious assault with notice of prior conviction and repeat violent offender

specification, domestic violence, and abduction. He complains that: (1)

exculpatory evidence was not preserved by the state, (2) due process was denied

when his motion to dismiss for lack of a speedy trial was denied, (3) the

testimony of an expert witness was improperly admitted, (4) his convictions

were based upon insufficient evidence and were against the manifest weight of

the evidence, (5) his sentence subjected him to multiple punishments for a

single crime, (6) his convictions for felonious assault and domestic violence

should have been merged, (7) his convictions for felonious assault and abduction

should have been merged, and (8) his right to due process was denied because

,.,.ti16 U41^..1V...-.11

.VV contested ^i^+v uu ^ v^ovorta90^a^evuu a urNan'fe(1 wit.h(Tnt. a

^hParinA_ For the^ -i....» .. ..-.... ^_r GaL as c11Y iau v va wv

reasons that follow, we affirm.

Evidence presented at Simmons's bench trial established that Simmons

and the victim, Marley Kichinka, had been dating for approximately two years

and had lived together for about a year. Anthony Davis, a friend of Simmons,

testified that on the night of June 4, 2010, the two were drunk when they

visited his home prior to their stop at a local bar. Kichinka and Simmons went

-2-

to the bar for ten cent beer night and began to argue after consuming a few

beers.

Simmons and Kichinka left the bar approximately four hours later and

were en route to the home of Simmons's friends, Seth and Gina, when the

arguing resumed. The friends overheard the commotion outside of their

residence and asked Kichinka and Simmons to leave. The two then headed to

their apartment.

The altercation became physical when they arrived home. Kichinka

testified that Simmons struck her in the face, knocked her down, then dragged

her into their apartment where he continued to beat her, and then choked her

until she became unconscious. Kichinka further testified that when she

regained consciousness, Simmons took her shoes and cell phone and forcibly

..^+v..^ of7 horf'rnm loOcVina i-}ia annri-.mnnt

Kichinka managed to escape the apartment the next morning and made

her way to a local laundromat. Simmons followed her to the establishment and

attempted to convince her to leave with him. An attendant at the laundromat,

Rebecca Szilagyi, testified that she observed Kichinka's facial injuries and tense

demeanor and asked Simmons to leave. Kichinka called her brother-in-law to

pick her up and went to the hospital for treatment.

.3-

Simmons was found guilty and sentenced as follows: three years for

felonious assault and two years for abduction to be served consecutively, and six

months for domestic violence to be served concurrently with the other charges,

for a total of five years in prison.

In his first assignment of error, Simmons claims that the state's failure

to preserve a telephone recording of a conversation that he had with Kichinka

during his incarceration amounted to a denial of due process, since the

recording contained exculpatory evidence.

The recording was offered by the state in support of its motion to revoke

Simmons's communication privileges because he had repeatedly attempted to

contact the victim in violation of a no contact order. In addition to providing the

court with the recording, the state provided phone logs from the Cuyahoga

Countv Jail that indicated Simmons had attemnted to contact Kichinka 229

times over a three-week period while he was incarcerated. The court granted

the motion in part by prohibiting Simmons from contacting anyone other than

his family and his attorney.

A defendant's due process rights are violated if the prosecution fails to

preserve materially exculpatory evidence. State v. Lewis (1990), 70 OhioApp.3d

624, 634, 591 N.E.2d 854. However, failure to preserve evidence that is merely

potentially useful does not amount to a due process violation unless bad faith

^9

-4-

is shown. Arizona v. Youngblood (1988), 488 U.S. 51, 58, 109 S.Ct. 333, 102

L.Ed.2d 281.

Evidence is materially exculpatory 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." State v. Johnston (1989), 39 Ohio St.3d

48, 529 N.E.2d 898, paragraph five of the syllabus. "The burden is on the

defendant to show the exculpatory nature of [unavailable] evidence." State v.

Sowell, 8th Dist. No. 90732, 2008-Ohio-5875, ¶28.

Simmons fails to demonstrate that the contents of this single phone

conversation was materially exculpatory or, for that matter, how the recording

would have been potentially useful to his defense. Furthermore, Simmons has

not met his burden of demonstrating that the results of his trial would have

7.,,.,..... ,^:1 11Cl,.G 1

,,.G....11 4 110. 411Gb L....dU tL..^ v.onnw^in<r nvif'e rnnl'.Pn1-.c hPAVI availahla to hllll_ Rn bl.sIJGGld U Lca.viu.^uc" vi av.+ w++....++.... ...-^..++ ..-•-------- o-- ---

first assigned error is overruled.

In his second assignment of error, Simmons contends that the denial of

his motion to dismiss for lack of a speedy trial constitutes a deprivation of due

process.

Criminal defendants are guaranteed the right to a speedy trial pursuant

to the Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution. Ohio's speedy trial statute provides that

-5-

a person against whom a felony charge is pending shall be brought to trial

within 270 days after arrest. Each day during which the accused is held in jail

in lieu of bail on the pending charge shall be counted as three days. R.C.

2945.71(E). Therefore, an individual who is incarcerated must be brought to

trial within 90 days. State v. Benson (1985), 29 Ohio App.3d 321, 322, 505

N.E.2d 987.

"In accordance with the speedy trial provisions, the statutory time period

begins to run on the date the defendant is arrested; however, the date of arrest

is not counted when computing the time period." State v. Shabazz, 8th Dist. No.

95021, 2011-Ohio-2260, ¶24. Also, the speedy trial time may be tolled by

several events; such as, discovery motions, motions for continuances, motions

to revoke privileges, and competency referrals. R.C. 2945.72.

"Tha e+.anrlarrl nf raviaw nf a cnPa.dv trial issue is to count the davs of___- ^_--__----__ -- -- -- -- -- -. ----^ -- - - _ __ „

delay chargeable to either side and determine whether the case was tried within

the time limits ***." State v. Dunbar, 8th Dist. No. 87317, 2007-Ohio-3261,

¶160-61, citing State v. Blumensaadt, llth Dist. No. 2000-L-107,

2001-Ohio-4317.

In this instance, the statutory period for Simmons's right to a speedy trial

began to run on June 15, 2010, the day following his arrest. Since he was being

held in jail on the pending charges, he was required to be tried on or before

-6-

September 13, 2010, barring any tolling events. His trial began on November

15, 2010, 153 days following his arrest. However, there were several tolling

events that extended the 90-day period for speedy trial.

On July 16, 2010, the state filed its motion to revoke defendant's

communication privileges. A hearing on the motion took place three days later

on July 19, 2010. This motion, "occasioned by the * * * improper act of the

accused," tolled the speedy trial time. R.C. 2945.72(D).

Also, on July 19, 2010, counsel for Simmons stated to the court that his

client was under "significant stress," and requested that he be referred to the

court psychiatric clinic to ascertain his competency to stand trial. On August

9, 2010, the court ordered Simmons to undergo a 20-day inpatient competency

evaluation since he had refused to cooperate with the clinic psychiatrist. On

Co,,ri+ombar 7 n 2m n a cmmpet.Pncv hearinLy was held. and the court found..1,.,.,....,..a _.,, _-_-, _- ----^ ------^ - -- ^ •

Simmons competent to proceed to trial. These events tolled the speedy trial

statute for 53 days. R.C. 2945.72(B) (time tolled while determining if defendant

is competent to stand trial).

The record indicates that on October 15, 2010, Simmons filed a demand

for discovery and motion for continuance. These were also tolling events

pursuant to R.C. 2945.72(E) and (H). See, also, State v. Brown, 98 Ohio St.3d

-7-

121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus. Five days elapsed before a

hearing was held on the motions.

On October 20, 2010, a hearing was held where the state informed the

court that it was prepared to proceed to trial. However, newly appointed

counsel for Simmons requested a continuance in order to further interview

witnesses. The court granted this request and set trial for November 3, 2010.

This motion tolled the running of the speedy trial clock for 14 days. R.C.

2945.72(H).

Finally, on November 3, 2010, the court rescheduled the trial to

November 8, 2010, since it was engaged in trial in another case. "Pursuant to

R.C. 2945.72(H) a court may grant a continuance upon its own initiative as long

as it is reasonable." State u. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637

AT Ti' 9.]onQ1^.L.uu ^vv.

The speedy trial time was tolled by Simmons on four occasions for a total

of 75 days, and by the court on one occasion for five days. With these tolling

events, 73 days passed between his arrest and the commencement of his trial.

Simmons's second assignment of error is overruled.

In his third assignment of error, Simmons claims that his right to due

process was violated when sexual assault nurse examiner, Elizabeth Petitt,

testified for the state as an expert witness.

"^3

-8-

"A ruling concerning the admission of expert testimony is within the

broad discretion of the trial court and will not be disturbed absent an abuse of

discretion." Scott v. Yates, 71 Ohio St.3d 219, 221, 1994-Ohio-462, 643 N.E.2d

105.

A court receives expert testimony to "assist the trier offact in determining

a fact issue or understanding the evidence." Miller v. BikeAthletic Co., 80 Ohio

St.3d 607, 611, 1998-Ohio-178, 687 N.E.2d 735. A trial court serves as a

gatekeeper to ensure that the admissibility of an expert's testimony meets

threshold requirements of relevance and reliability. Daubert U. Merrell Dow

Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469;

Evid.R. 702(C). An expert witness must possess knowledge in the relevant

subject area that is superior to an ordinary person, and may be "qualified as an

_._4 7_._ ,. : ,.1:.-,,..7 1...,,..,1.,.7.... Ab;11 ovr,ov.ionno 4rainina nr pranrat.innex1^./C1V Aly "Upect<L11GCU 11+1vvvlGUSc, O.[>1a+, ^.[>j./^++^++vv, u+u++++++b, vi

regarding the subject matter of the testimony." Evid.R. 702(A) and (B). The

expert's opinion must be based upon scientifically valid principles. Evid.R.

702(C).

In this instance, Petitt was called by the hospital at Kichinka's request

to conduct a domestic violence examination. Prior to offering an opinion about

her observations and the treatment she rendered, Petitt testified that she was

a board-certified family nurse practitioner, a registered nurse, a certified

-9-

forensic nurse examiner, held dual masters degrees in education and as a

family nurse practitioner, and had approximately 15 years of experience in the

field of nursing. She testified that, her examination of Kichinka revealed

injuries consistent with a beating, and that she observed petechia' on the

victim's face and neck that were indicative of strangulation.

Simmons protests that Petitt's testimony exceeded her ability and

qualifications as an expert witness, and that her opinion was based only upon

her observations and not scientific data. He also complains that Petitt

incorrectly testified that a CAT scan was performed on Kichinka, and that the

examining physician's report did not corroborate her perception and opinion

concerning petechia.

Petitt's testimony was within the scope of her expertise because she is a

+^,..ro .. ........^.,..i... ..ol1... morlinal.. rirnfocainnal WhnaP nnalifif!a+.inna arA in arP.AR of aRRalllt Anti.----

domestic violence injuries. Her testimony concerning the relationship between

petechia and asphyxiation helped the trier of fact to understand the severity

and duration of the choking episode inflicted upon the victim. See Evid.R.

702(B); see, also, State v. Stillman, 5th Dist. No. 04CAA07052, 2004-Ohio-6974

(expert testimony concerning strangulation by sexual assault nurse examiner

'Petechia are "minute reddish or purplish spot[s] containing blood that appearsin skin or mucous membrane as a result of localized hemorrhage."http://dictionary.reference.com/browse/petechiae (last accessed November 10, 2011)

-10-

allowed). Nevertheless, these qualifications alone do not establish the legal

reliability of her opinions.

In order to establish the reliability of expert testimony, courts focus on

how the experts arrived at their conclusions. Valentine v. Conrad, 110 Ohio

St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶16. In State v. Young, 6th Dist. No.

L-06-1106, 2007-Ohio-754, a sexual assault nurse examiner was found to be

qualified as an expert witness "regarding the examination and recognition of

injuries and trauma" based not only upon her stellar educational qualifications,

but also because "her testimony was based upon reliable procedures and

information utilized within the medical field." Id. at ¶22.

Here, Petitt testified that her notes were in fact part of the medical

record, and her testimony was partly based upon observations noted during

u;,.t,;,,lra'Q +rpat,,,P„t. RPP Staff Notes to Evid.R. 703 (expert testimony may be

based upon facts observed or data collected upon examination or testing).

Petitt's opinions do not need a scientific foundation since Evid.R. 703 allows an

expert to render an opinion based wholly on perceptions. State U. Solomon

(1991), 59 Ohio St.3d 124, 126, 570 N.E.2d 1118.

Petitt's testimony was properly admitted by the trial court, and

accordingly, Simmons's third assignment of error is overruled.

-11-

In his fourth assigned error, Simmons claims that there was insufficient

evidence to convict him of felonious assault.

When reviewing a claim that there is insufficient evidence to support a

criminal conviction, we view the evidence in a light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

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

Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

A conviction based on legally insufficient evidence constitutes a denial of due

process. Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652,

citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

Felonious assault, defined by R.C. 2903.11(A)(1) commands that "[n]o

person shall knowingly ***[c]ause serious physical harm to.another ***."

-1_.,...,.1 1.,.,,......^^ ' .. .]..h.....] .^ '0hav.m that narriac a anhat.ant.ial risk nfIJCl-1VU.7' 1J11yDll:Ctl 110.1111 lo ucllaicu uo ++ua.u. -..u........+.... ... __

death * * * permanent incapacity * * * temporary substantial incapacity * * *

permanent disfigurement * * * or temporary serious disfigurement." R.C.

2901.01(A)(5)(b), (c), and (d).

Simmons argues that the element of serious physical harm was not

proven beyond a reasonable doubt. He contends that the trial court's finding

that he strangled Kichinka was unsupported because the photographs of her

injuries admitted into evidence did not clearly demonstrate the presence of

-12-

petechia. He also argues that the acts to restrain Kichinka were not committed

for the purpose of inflicting serious physical harm.

In State v. Smith, 9th Dist. Nos. 23468 and 23464, 2007-Ohio-5524,

sufficient evidence of serious physical harm to support a conviction for felonious

assault was established with only the testimony of the victim and an

emergency room physician. In Smith, the victim testified that she almost lost

consciousness due to the defendant violently choking her. Id. at ¶27. The

treating emergency room physician testified that he observed "a petechial rash

on the upper portion of [the victim's] face and eyes," and that her injuries were

consistent with extreme choking pressure that constituted a "life-threatening

act." Id. The court stated that "[i]t is hard to fathom how choking a victim to

the brink of unconsciousness does not *** amount to a`substantial' risk of

Ao^+h " Trl

Similar to Smith, the testimony of Kichinka and Petitt establishes the

element of serious physical harm. Additionally, the court found distinct support

for this element when it considered the photographic evidence of the severe

swelling and bruising in and around Kichinka's left eye to constitute a

temporary serious disfigurement. See State v. Plemmons-Greene, 8th Dist. No.

92267, 2010-Ohio-655, ¶ 29 (photograph of black eye, swelling, and bruising, in

conjunction with testimony, sufficient for a finding of "serious physical harm").

^g

-13-

Simmons's fourth assignment of error is overruled.

Simmons, in his fifth assignment of error, argues that he was deprived of

due process when the court overruled his motion for judgment of acquittal for

kidnapping and found him guilty of a lesser offense of abduction.

Count one of Simmons's indictment charges him with kidnapping

pursuant to R. C. 2905.01(A)(3). Kichinka testified that after the beating ceased,

Simmons took her shoes and cell phone and repeatedly pushed her down when

she attempted to leave. During closing argument, counsel for Simmons

requested the court to "consider instructions for deliberation as to the lesser

included of kidnaping [sic] of abduction to the charge of kidnaping ***." The

trial court found that the victim was not restrained for the purpose of

terrorizing or inflicting serious physical harm. As a result, the court ruled that

+b.,. ..+.,+.. 1....] ...^1 rv.n<^ov^Ho nrimo nf lrir^nannino }177t. l'7Afl mP.t t.}1P. ^lul"(^P.ll l)f^itc o^n^c iiau aiv^ p.avv.... ^.... ..^^..^.. ..........^....rr..^'a, ..,^"'^" -_'- _burden --

proving the crime of abduction beyond a reasonable doubt.

Abduction, pursuant to R.C. 2905.02(A)(2), states that "[n]o person shall

***[b]y force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the

other person in fear." "Fear" is defined as "a distressing emotion aroused by

impending danger." Websters Unabridged Dictionary (2 Ed. 1998) 724, 1960.

-14-

Abduction is a lesser included offense of kidnapping. State v. Maurer (1984), 15

Ohio St.3d 239, 271, 473 N.E.2d 768.

Simmons argues that Kichinka was not restrained and that she could not

have possibly been placed in fear after the assault because she went to sleep

afterwards. He also contends that the trial court's ruling is contradictory and

cannot be reconciled since it found that while Kichinka was not restrained for

the purposes of being "terrorized," she was nevertheless placed in "fear."

In State v. Kvasne, 169 Ohio App.3d 167, 2006-Ohio-5235, 862 N.E.2d

171, the victim "testified that [the defendant] pushed her onto the floor,

straddled her, and pinned her arms above her head, * * * that her struggles to

escape were in vain; she felt `absolutely helpless' to prevent him from beating

her badly, and being aware of [the defendant's] angry disposition * * * was

Ho, q.fo+<> ,a„ri„q tt,A i„vidP„t." irl 1164_ This court found that the

defendant's "use of force and threat during the restraint placed her in fear,

thereby violating R.C. 2905.02(A)(2)." Id.

The trial court found that Kichinka's testimony supported being abducted.

She repeatedly stated that she felt she was not free to leave, and feared that

Simmons would harm her further if she attempted to do so. Kichinka felt

compelled to remain in the apartment because she feared additional harm, and

her apprehension was not unreasonable under the circumstances.

^^

-15-

The trial court did not err by finding Simmons guilty of abduction.

Simmons's fifth assignment of error is overruled.

In his sixth assignment of error, Simmons claims that the court made an

unconstitutional amendment to the indictment because abduction is not a lesser

included offense of kidnapping as alleged in the indictment.

Courts are permitted to, "at any time before, during or after a trial amend

[an] indictment * * * in respect to * * * any variance with the evidence, provided

no change is made in the name or identity of the crime charged." Crim.R. 7(D).

"The amendment of a charge `in an indictment to a lesser included offense does

not change the name or identity of the crime charged."' Cleveland v. Smith, 8th

Dist. No. 81778, 2009-Ohio-3594, ¶6, quoting State v. Watson, 5th Dist. No.

2004CA00286, 2005-Ohio-1729, ¶10. "[I]f lesser offenses are included within

tlye nFfenge rhargufl^ t.ha rlafanrlant mav he fniind *** guilty of *^* a lesser

included offense." Crim.R. 31(C). Abduction is a lesser included offense of

kidnapping. State v. Roman, 8th Dist. No. 92743, 2010-Ohio-3593, ¶5; State v.

Manus, 8th Dist. No. 94631, 2011-Ohio-603, ¶27.

Simmons's indictment was properly amended to a lesser included offense

of the crime charged in order to conform to the evidence presented at trial.

Therefore, we overrule his sixth assignment of error.

.3/

-16-

Simmons complains in his seventh assigned error that his conviction for

domestic violence amounts to a denial of due process, since the state failed to

prove all of the elements of the offense. Specifically, he claims that the court

did not find that there were conjugal relations. Therefore, he asserts that the

element of consortium needed to prove cohabitation was not established in

order to sustain a conviction for domestic violence.

Domestic violence, pursuant to R.C. 2919.25(A), states that "[n]o person

shall knowingly cause or attempt to cause physical harm to a family or

household member." "Family or household member" is defined as "[a] spouse,

a person living as a spouse, or a former spouse of the offender." R.C.

2919.25(F)(1)(i). The phrase "`[p]erson living as a spouse' means a person who

is living or has lived with the offender in a common law marital relationship,

.xihn nt.herwisa ic enliahiting with the offender R.C. 2919.25(F)(2)(b).

"The essential elements of `cohabitation' are (1) sharing of familial or

financial responsibilities and (2) consortium." State u. Williams, 79 Ohio St.3d

459, 1997-Ohio-79, 683 N.E.2d 1126, paragraph one of the syllabus. "Factors

that might establish consortium include mutual respect, fidelity, affection,

society, cooperation, solace, comfort, aid of each other, friendship, and conjugal

relations." State u. Smith, 8th Dist. Nos. 95932 and 95933, 2011-Ohio-4409,

¶30, quoting Williams, 79 Ohio St.3d at 465. In Williams, testimony from the

^^

-17-

victim that established shared financial responsibilities, society, and conjugal

relations with the defendant, even while living separately, sufficed as proof of

consortium. Id. at 465.

The testimony of Kichinka and Simmons was sufficient to establish

conjugal relations as well as cohabitation. Kichinka testified that she and

Simmons lived together. for about a year and a half, that they had been intimate

during that period of time, and that she purchased items for Simmons because

she loved him. Simmons testified that Kichinka was his girlfriend, that they

lived together for about two years and were involved romantically, and that he

paid for many of their living expenses.

Evidence of conjugal relations standing alone is not dispositive to prove

domestic violence. Clearly however, the above testimony establishes society,

aFfor+i nn girl frienrlchip^ and cnnneration as well as conjugal relations.

Consequently, Simmons's seventh assignment of error is overruled.

Simmons's eighth and ninth assignments of error will be addressed

together. In his eighth assignment of error, Simmons argues that felonious

assault and domestic violence are allied offenses of similar import and, therefore,

it was improper for the trial court to impose separate sentences. Simmons

complains in his ninth assignment of error that his convictions for felonious

-18-

assault and abduction were part and parcel of the same activity, and therefore

should have been merged.

"R.C. 2941.25, Ohio's allied offenses statute, protects against multiple

punishments for the same criminal conduct in violation of the Double Jeopardy

Clauses of the United States and Ohio Constitutions." State U. Sanchez, 8th

Dist. Nos. 93569 and 93570, 2010-Ohio-6153, ¶49, citing State v. Moore (1996),

110 Ohio App.3d 649, 653, 675 N.E.2d 13. "Where the same conduct by

defendant can be construed to constitute two or more allied offenses of similar

import, the indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one." R.C. 2941.25(A). Furthermore,

"[w]hen a defendant has been found guilty.of offenses that are allied offenses,

R.C. 2941.25 prohibits the imposition of multiple sentences." State u. Damron,

129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶17.

The conduct of the accused must be considered when determining whether

two offenses are allied offenses of similar import subject to merger under R.C.

2941.25. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, syllabus. Courts are not tasked with "perform[ing] any hypothetical or

abstract comparison of the offenses at issue in order to conclude that the offenses

are subject to merger." Id. at ¶47. "[T]he question is whether it is possible to

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

-19-

it is possible to commit one without committing the other. *** If the offenses

correspond to such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other, then the offenses

are of similar import." Id. at ¶48, "If the multiple offenses can be committed by

the same conduct, then the court must determine whether the offenses were

committed by the same conduct, i.e., `a single act, committed with a single state

of mind.' *** If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged." Id. at ¶49-50, quoting State v.

Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50.

Pursuant to R.C. 2941.25(B), offenses will not merge if a court finds that

the commission of one offense will never result in the commission of the other,

if the offenses are carried out separately, or if the defendant has a separate

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Simmons argues that the separate sentence for domestic violence is

erroneous since the count of domestic violence was an allied offense to felonious

assault and should have been merged. The trial court, however, determined that

Simmons committed two distinct crimes and had a separate animus for each.

The court found that Simmons first committed felonious assault and

caused serious physical harm to Kichinka when he struck her and blackened her

eye, resulting in a temporary serious disfigurement. Simmons's later actions of

^^

-20-

hitting, chocking, and dragging Kichinka constituted a separate instance of

domestic violence. The trial court was correct in its determination that domestic

violence and felonious assault were independent offenses in this instance.

R.C. 2905.02(A) defines abduction and provides, in pertinent part that

"[n]o person shall * * * (2) By force or threat, restrain the liberty of another

person under circumstances that create a risk of physical harm to the victim or

place the other person in fear." A finding of "serious physical harm" is a

prerequisite to a conviction for felonious assault, but is not an element of

abduction. R.C.2903.11(A).

Testimony established, and the court noted, that Simmons abducted

Kichinka only after beating her, and also that these distinct actions were

carried out in order to restrain Kichinka, and not to inflict serious bodily harm.

ThPrefnre_ the offenses here were carried out at different times and with a

separate animus.

Assignments of error eight and nine are overruled.

In his final assignment of error, Simmons claims that he was denied due

process when the court granted restitution to the victim without holding a

hearing, even though he contested restitution.

An award of restitution is reviewed using an abuse of discretion standard.

State v. Mobley-Melbar, 8th Dist. No. 92314, 2010-Ohio-3177, ¶37. R.C. z

-21-

2929.18(A)(1) states, in pertinent part: "[i]f the court decides to impose

restitution, the court shall hold a hearing on restitution if the offender, victim

or survivor disputes the amount." See, also, State u. Jarrett, 8th Dist. No. 90404,

2008-Ohio-4868, ¶18 (a trial court is required to hold a separate hearing when

the defendant "object[s] to restitution or dispute [s] the amount requested by the

victims").

"[P]rior to imposing restitution, a trial court must determine the amount

of restitution to a reasonable degree of certainty, ensuring that the amount is

supported by competent, credible evidence." State v. Waiters, 191 Ohio App.3d

720, 2010-Ohio-5764, 947 N.E.2d 710, ¶17, citing State u. Warner (1990), 55 Ohio

St.3d 31, 69, 564 N.E.2d 18. Economic loss may be demonstrated by introducing

documentary andlor testimonial evidence. Id. at ¶18.

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pay restitution to Kichinka for her medical bills. Counsel for Simmons objected

to any restitution beyond services rendered to Kichinka for her injuries related

to the case at bar. No testimony was offered to support the request for

restitution since Kichinka was not present. Instead, the state presented an

invoice from Fairview Hospital that itemized emergency services rendered to

Kichinka. This invoice is not a part of the record before us. Nevertheless, the

court noted that the dates and times of treatment corresponded to Kichinka's

'5^1

-22-

previous testimony, and stated that it had "no reason to believe that isn't the

appropriate bill for the medical records that were [previously] submitted here."

Simmons, however, now argues that the medical records indicate that

insurance coverage existed, since the record contains a coded statement from

Fairview Hospital dated June 5, 2010 with a notation indicating possible

insurance coverage. This argument was not raised below, so we decline to

consider it. Furthermore, the trial court determined the amount of restitution

to a reasonable degree of certainty by scrutinizing the dates and services listed

on the hospital invoice. The invoice was competent and credible evidence.

Simmons objected only to restitution exceeding medical treatment required for

Kichinka's injuries that resulted from the charged offenses. There is no

,+i,a++hp;,,vo;cPcr,,,t.a;nedchargesforanvtreatmentotherthanwhat

was required for Kichinka's injuries. The trial court, therefore, complied with

defense counsel's request to limit the restitution.

Simmons's final assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

-23-

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

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

The defendant's conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

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

PATRWIA ANN BLACKMON, P.J., andCOLLEEN CONWAY COONEY, J., CONCUR