[Cite as State v. Flenner, 2018-Ohio-1027.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2017-T-0054 - vs - :
CECIL LEE FLENNER, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR 00641.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Gabriel M. Wildman, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 444481 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Cecil L. Flenner, appeals his conviction and sentence on seven
felony offenses, including aggravated burglary, rape, and kidnapping. He contests the
sufficiency of the evidence, the manifest weight of the evidence, and the merger of the
kidnapping count for purposes of sentencing. We affirm.
{¶2} Appellant has been addicted to cocaine for twenty years. During most of that time, he has been close friends with Lisa Prater, a cocaine addict for over fifteen
years. In the beginning, appellant’s relationship with Prater was limited to using illegal
drugs together. However, as the years went by, they began to live together at various
locations in the Warren, Ohio area. Usually, their living arrangements would only last for
a few months, and they would then go their separate ways. Nevertheless, their friendship
endured.
{¶3} At some point in 2013, Prater was convicted of cocaine possession, a fifth-
degree felony. As a result of this conviction, Prater became motivated to “beat” her
addiction. Over the ensuing three years, she remained “clean” and began attending
church as often as she could. With assistance from her parents, she was also able to
purchase a trailer, located near her church in the Warren area.
{¶4} During the course of her rehabilitation, Prater maintained her friendship with
appellant. Furthermore, during certain periods in which appellant was able to stop taking
illegal drugs, Prater allowed him to reside with her. One such period began in June 2016,
when he moved into her trailer. But, despite the closeness of their relationship, the parties
had an agreement that their cohabitation would end if appellant started using cocaine
again.
{¶5} This period of cohabitation lasted for approximately two months. In early
August 2016, appellant began a serious cocaine binge and immediately removed most of
his belongings from the trailer. Since Prater felt that she must end her friendship with
appellant due to his inability to remain sober, she required him to leave his key to the
trailer with her.
{¶6} In the days following their breakup, Prater believed that appellant was
2 stalking her by driving around the general area near her trailer. She also believed that,
on one occasion, he broke into the trailer through a window and stole some small items.
Consequently, her father and a church friend inserted additional screws through each of
her window frames so that the windows could not be pried open. They also installed two
new locks on her front door.
{¶7} According to Prater, on the morning of August 25, 2016, she observed
appellant sitting in his truck near her trailer, looking at her through a window as she had
a cup of coffee. In response, she called his probation officer to report his behavior. But,
after a few moments, appellant drove away from the trailer, and Prater did not have any
further contact with him that day. At approximately 10:00 p.m., she took her daily
medications and went to bed. Due to the nature of her pills, she was a sound sleeper.
{¶8} According to appellant, he stopped at the trailer that morning because he
wanted to tell Prater that he had decided to straighten up his life. Under his version, they
had an amicable conversation about the situation, and Prater told him that he could come
back that evening. She also allegedly gave him a new key to the front door. Yet, although
appellant intended to come back later that day, he was delayed because he had an
opportunity to smoke crack cocaine. Thus, he did not return to the trailer until 1:00 a.m.
on August 26.
{¶9} There is no dispute that upon his return, appellant parked his truck in the
parking lot of a nearby church, walked across a field to Prater’s trailer, and smashed one
of her windows with a crowbar. After that, the two versions of the ensuing events vary
greatly. According to Prater, appellant terrorized her during the next few hours by
committing the following acts: hitting her with his fist in the face and chest, threatening to
3 kill her, raping her, choking her until she was rendered unconscious for a short period,
and forcing her to take a shower. According to him, Prater willingly let him into the trailer
after hearing him smash the window, and they had consensual sex. Later, they had a
physical altercation when Prater became jealous after he received a telephone call from
a female cocaine user. During that altercation, he slapped Prater’s face with his open
hand.
{¶10} There is likewise no dispute that appellant was high on cocaine during the
entire event. At approximately 5:00 a.m., he passed out on the living room couch, and
Prater immediately called the local police. Meeting the responding police officers in the
driveway to her trailer, she quickly informed them that appellant had broken into her
residence and raped her. The officers observed that Prater appeared frightened and had
multiple bruises on her face and neck. After speaking to the officers, she was taken by
ambulance to a local hospital.
{¶11} In addition to Prater’s allegations, the officers learned over their radios that
there was an outstanding warrant for appellant’s arrest. Accordingly, appellant was
immediately taken into custody.
{¶12} At the hospital, a sexual assault nurse examined Prater. As part of the
procedure, the nurse took Prater’s statement concerning the rape and documented the
injuries to her face, neck, chest, and left knee. Although Prater’s genitals were examined,
no trauma or DNA evidence was found in this part of her body. However, subsequent
tests of Prater’s night shirt revealed the presence of seminal fluid, and appellant’s DNA
was found on the same item.
{¶13} After preliminary proceedings before a municipal court, the county grand
4 jury returned a seven count indictment charging appellant with the following: two counts
of aggravated burglary, first-degree felonies under R.C. 2911.11(A)(1) & (A)(2); two
counts of rape, first-degree felonies under R.C. 2907.02(A)(2); one count of kidnapping,
a first-degree felony under R.C. 2905.01(A)(3); one count of domestic violence, a third-
degree felony under R.C. 2919.25(A); and one count of tampering with evidence, a third-
degree felony under R.C. 2921.12(A)(1).
{¶14} At trial, Prater testified that the following occurred after appellant entered
the trailer: (1) she initially woke up because someone was laying on top of her and hitting
her in the head; (2) she did not know who her attacker was until he got up and turned on
the light, whereupon she saw it was appellant; (3) he was holding a crowbar and
threatening her, stating he was going to kill her by crushing her skull; (4) appellant took
possession of Prater’s cell phone before waking her; (5) he continued to threaten her for
a substantial period, during which he twice went into the kitchen for water and food; (6)
after threatening her with a knife he got from the kitchen, he left her bedroom and went
to the laundry room to get bleach to pour on her clothes; (7) at that point, Prater tried to
escape by running to the front door; (8) appellant caught her by the door and
dragged/pushed her back to the bedroom; (9) after pushing her onto the bed, he took off
Prater’s night clothes and forced her to engage in oral and vaginal sex; (10) appellant
punched her and held her around the throat while raping her; (11) at the end of the vaginal
sex, he ejaculated on Prater’s stomach; (12) he again told her that he was going to kill
her, grabbed her by the throat, and then choked her until she lost consciousness; (13)
when Prater woke, appellant was dressed and walking down the hallway; (14) she put
her night shirt on and started to follow him; (15) at that juncture, he ordered her to take a
5 shower so that there would be no evidence of the rape; (16) she got into the shower and
let the water run over her, but did not use soap; (17) after the shower, appellant got a
telephone call which changed his attitude, and he began to act as if nothing had
happened; (18) he told Prater he was leaving, but he passed out before making it to the
front door; and (19) she called 9-1-1 with a spare cell phone she kept hidden in her
bedroom.
{¶15} Appellant testified on his own behalf, stating that, even though he used the
crowbar to brake the window, Prater still willingly allowed him into her residence and they
had consensual sex. Although he admitted he slapped Prater during a physical
altercation, he claimed this did not occur until after they had sex and was instigated when
Prater became jealous about a phone call he received from another female.
{¶16} The jury found appellant guilty on all counts. For purposes of sentencing,
the trial court merged the two aggravated burglary counts. The court then imposed 10
years on the remaining aggravated burglary count; 10 years on each of the two rape
counts; five years on the kidnapping count; 36 months on the domestic violence count;
and 36 months on the “tampering with evidence” count. The trial court further ordered
the first four terms to be served consecutively, while the two 36-month terms would be
served concurrently with each other and the other four terms. As a result, appellant was
given an aggregate term of 35 years.
{¶17} In appealing, appellant raises six assignments of error for review:
{¶18} “[1.] The state failed to produce evidence that was legally sufficient to
sustain the jury’s verdict that appellant tampered with evidence.
{¶19} “[2.] The jury’s verdict of guilty on the counts of aggravated burglary was
6 against the manifest weight of the evidence.
{¶20} “[3.] The jury’s verdict of guilty on the counts of rape was against the
manifest weight of the evidence.
{¶21} “[4.] The jury’s verdict of guilty on the count of kidnapping was against the
{¶22} “[5.] The jury’s verdict of guilty on the count of tampering with evidence was
against the manifest weight of the evidence.
{¶23} “[6.] The trial court erred when it failed to merge the kidnapping count with
an allied offense.”
{¶24} Under his first assignment, appellant contends his conviction for tampering
with evidence cannot stand because the state failed to present any testimony showing
that he committed an act causing the destruction of relevant evidence. The “evidence” in
dispute is the seminal fluid which, according to Prater, appellant ejaculated on her
stomach after the vaginal rape. In charging him with this offense, the state alleged that
he purposely acted to destroy the seminal fluid by requiring Prater to take a shower.
Appellant argues that no destruction of the fluid could have occurred because Prater
specifically testified that she did not use soap during the shower.
{¶25} In raising this argument, appellant is contesting the legal sufficiency of the
state’s evidence as to the “tampering” count:
{¶26} “‘A sufficiency of the evidence argument challenges whether the state has
presented evidence for each element of the charged offense. The test for sufficiency of
evidence is whether, after viewing the probative evidence and the inferences drawn from
it, in a light most favorable to the prosecution, any rational trier of fact could find all
7 elements of the charged offense proven beyond a reasonable doubt.’ State v. Barno,
11th Dist. No. 2000-P-0100, 2001-Ohio-4319, 2001 Ohio App. LEXIS 4280, at *16, 2001
WL 1116908 [at *5] citing State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d 1163 2001-
Ohio-57. Whether sufficient evidence has been presented to allow the case to go to the
jury is a question of law; thus, an appellate court is not permitted to weigh the evidence
when making this inquiry. State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994
Ohio App. LEXIS 5862, at *13, 1994 WL 738452 [at *4] (citations omitted). A reviewing
court will not reverse a jury verdict ‘where there is substantial evidence upon which the
jury could reasonably conclude that all the elements of an offense have been proven
beyond a reasonable doubt.’ Id. citing State v. Eley (1978), 56 Ohio St.2d 169, 383
N.E.2d 132, at the syllabus. Thus, an appellate court will examine the evidence and
determine whether that evidence, ‘if believed, would convince the average mind of a
defendant’s guilt beyond a reasonable doubt.’ State v. Norwood, 11th Dist. No. 2005-L-
047, 2006-Ohio-3415, at ¶15, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574
N.E.2d 492.” State v. Higgins, 11th Dist. Lake No. 2005-L-215, 2006-Ohio-5372, ¶22.
{¶27} Appellant was charged with one count of tampering with evidence under
R.C. 2921.12(A)(1), which provides:
{¶28} “(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following:
{¶29} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or investigation.”
{¶30} According to Prater, as she began to follow appellant down the hallway after
she regained consciousness, he ordered her to immediately take a shower for the express
8 purpose of disposing of any “proof” that he raped her. Prater also testified that, even
though she complied with his demands and got into the shower, she did not use any soap.
Based upon this testimony, appellant maintains that the state’s evidence is insufficient to
establish that his “order” to Prater resulted in the destruction of the ejaculate on her
stomach.
{¶31} However, the state presented other evidence demonstrating that, although
a skin swab of Prater’s stomach was taken during the examination performed by the
sexual assault nurse, no trace of seminal fluid was found on her stomach or any other
part of her body. Therefore, a reasonable person could conclude that, notwithstanding
the lack of soap, the seminal fluid was removed from her body as a result of the water
from the shower. To this extent, the state presented some evidence sufficient to satisfy
the “destruction” element of tampering with evidence. Appellant’s first assignment lacks
merit.
{¶32} Under his next four assignments, appellant asserts each of his convictions
for aggravated burglary, rape, kidnapping, and tampering with evidence are against the
manifest weight of the evidence. Although asserting a separate assignment of error as
to each conviction, he has raised the identical argument regarding all four. Specifically,
he contends that the jury should have rejected Prater’s testimony as unbelievable in
contrast to his version of the incident because her testimony directly conflicts with prior
statements she gave to the police and the sexual assault nurse.
{¶33} “Whereas ‘sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.’ State v. Wilson, 113 Ohio
9 St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). ‘In other words, a reviewing court asks
whose evidence is more persuasive – the state’s or the defendant’s?’ Id. An appellate
court considering whether a verdict is against the manifest weight of the evidence must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and whether, ‘in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’ Thompkins, at 387, 678 N.E.2d 541, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).” State v. Griggs, 11th Dist. Lake
No. 2014-L-127, 2015-Ohio-4635, ¶42.
{¶34} Even though an appellate court is required to consider the credibility of the
witnesses as part of its review of the evidence, we are also obligated to show due
deference to the jury’s resolution of this matter. State v. Tvaroch, 11th Dist. Trumbull No.
2012-T-0008, 2012-Ohio-5836, ¶45.
{¶35} “‘As a general proposition, we have consistently indicated that questions of
witness credibility are primarily for the trier of fact to decide. [State v. Johnson, 11th Dist.
No. 2009-T-0042, 2010-Ohio-1970, 2010 WL 1782446, at ¶17,] citing State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The basis of
this proposition is that the trier of fact is in a much better position to observe the body
language, demeanor, and voice inflection of the witnesses.’ State v. Meeks, 11th Dist.
No. 2011-L-066, 2012-Ohio-4098, 2012 WL 3893588, ¶37.” Id. at ¶46.
{¶36} At trial, appellant’s counsel argued that Prater’s trial testimony was not
consistent with her statements to the police immediately after the incident. Specifically,
10 counsel noted that Prater referenced the rapes early in her statements to the police,
thereby insinuating that the rapes occurred soon after appellant broke into the trailer. In
contrast, she clearly stated during her trial testimony that appellant terrorized her for a
substantial period before committing the rapes. Based upon this, counsel asserted that
Prater had given conflicting versions of the incident, thereby rendering her testimony
unbelievable.
{¶37} However, there is a logical reason for the alleged inconsistency between
Prater’s testimony and her prior statements. When she spoke to the police the day of the
incident, the incident had just ended, and Prater was still under the immediate emotional
distress of the situation. Under such circumstances, it is understandable that the
statements she gave to the police were not as detailed as her testimony eight months
later. Furthermore, given that the two rapes were the most serious offenses that occurred
in the incident as described by Prater, it is not surprising that Prater would reference them
early in her statement to the police notwithstanding the fact that appellant terrorized her
at least one hour before committing the rapes.
{¶38} Appellant was clearly nervous in testifying at trial; thus, her testimony was
sometimes rambling, as she would try to address multiple issues in answering a single
question. Nevertheless, her testimony was generally coherent and did not contain
illogical inconsistencies. Moreover, her version of the incident was supported by other
physical facts, such as the nature of the injuries to her face and the presence of seminal
fluid on her night shirt. In addition, as the state aptly notes, the jury could have reasonably
rejected appellant’s testimony on the grounds that, by his own admission, he had been
on a cocaine binge for several days prior to the incident. Therefore, the jury did not lose
11 its way in finding Prater’s testimony credible.
{¶39} Appellant does not dispute that, if believed, the state’s evidence satisfies all
of the elements for aggravated burglary, both rapes, kidnapping, and tampering with
evidence. Accordingly, all four of his “manifest weight” assignments are without merit.
{¶40} Under his last assignment, appellant maintains that the trial court erred in
imposing a separate sentence on the kidnapping count because that crime should have
been merged into either the two rape counts or the “tampering with evidence” count. He
argues that the additional penalty is unjustified when the kidnapping did not expose Prater
to any separate harm and was not committed with a separate animus.
{¶41} “R.C. 2941.25 reflects the General Assembly’s intent to prohibit or allow
multiple punishments for two or more offenses resulting from the same conduct. State v.
Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶11. R.C. 2941.25 provides:
{¶42} “‘(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment * * * may contain counts for
all such offenses, but the defendant may be convicted of only one.’
{¶43} “‘(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 *
* * may contain counts for all such offenses, and the defendant may be convicted of all of
them.’” State v. Armstead-Williams, 11th Dist. Portage No. 2016-P-0007, 2017-Ohio-
5643, ¶18-20.
{¶44} “In other words, by statute, when the defendant’s conduct constitutes a
single offense, the defendant may be convicted and punished only for that offense. When
12 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.
{¶45} “In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio
Supreme Court set forth the standard for determining whether merger is apposite, holding
that ‘[w]hen determining whether two offenses are allied offenses of similar import subject
to merger under R.C. 2941.25, the conduct of the accused must be considered.’ Id. at
syllabus. Recently, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme
Court clarified that two or more offenses may result in multiple convictions if any of the
following are true: ‘(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.’ Id.
at ¶25.” State v. Jameson, 11th Dist. Ashtabula No. 2014-A-0069, 2015-Ohio-4634, ¶10-
11.
{¶46} As a general proposition, the offenses of kidnapping and rape are allied
offenses of similar import. State v. Miller, 11th Dist. Trumbull No. 2010-T-0018, 2010-
Ohio-5795, ¶73-74, quoting State v. Price, 60 Ohio St.2d 136, 393 N.E.2d 772 (1979),
paragraph five of the syllabus. Regarding the issue of when rape and kidnapping are
committed with separate motivations, Miller quoted the following passage from State v.
Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶90:
{¶47} “‘In State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, we
established guidelines to determine whether kidnapping and rape are committed with a
separate animus so as to permit separate punishment under R.C. 2941.25(B). We held
13 in Logan that “where the restraint or movement of the victim is merely incidental to a
separate underlying crime, there exists no separate animus sufficient to sustain separate
convictions; however, when the restraint is prolonged, the confinement secretive, or the
movement is substantial so as to demonstrate a significance independent of the other
offense, there exists a separate animus as to each offense sufficient to support separate
convictions.” Id. at paragraph (a) of the syllabus. Conversely, the Logan court recognized
that where the asportation or restraint “subjects the victim to a substantial increase in risk
of harm separate and apart from the underlying crime, there exists a separate animus.”
Id., 60 Ohio St.2d 126, 397 N.E.2d 1345, at paragraph (b) of the syllabus.’” Miller, 2010-
Ohio-5795, at ¶76.
{¶48} According to Prater, appellant was inside her home a prolonged period of
time, at least one hour, before the rapes occurred. During that period, he terrorized her
by hitting her with his fist, threatening her with a crowbar and knife, and threatening to
take her life. Thus, during that initial period before the rapes, Prater’s liberty was
restrained, and she was subject to a substantial risk of harm that was distinct from the
rapes. Given these facts, appellant had a separate animus as to the kidnapping count
and the two rape counts.
{¶49} Even if it is assumed, for purposes of this discussion, that kidnapping and
tampering with evidence are allied offenses of similar import, the foregoing “separate
animus” analysis would still apply. Again, appellant’s restraint of Prater prior to the rapes
cannot be characterized as merely incidental to his subsequent action of forcing Prater to
take a shower. Therefore, the trial court did not err in imposing a separate prison term
on the kidnapping count because it was not subject to merger under R.C. 2941.25.
14 Appellant’s sixth assignment also lacks merit.
{¶50} The judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.