[Cite as State v. Marshall, 2023-Ohio-3542.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1207
Appellee Trial Court No. CR0202101068
v.
Kenneth Marshall DECISION AND JUDGMENT
Appellant Decided: September 29, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
SULEK, J.
{¶ 1} Appellant, Kenneth Marshall, appeals the August 16, 2022 judgment of the
Lucas County Court of Common Pleas which, following a jury trial, sentenced him to a
minimum of 130 years in prison on aggravated murder, felonious assault, and rape
convictions, with repeat violent offender specifications. Marshall claims errors in the trial court’s failure to sever the offenses which were committed against three separate
victims on different dates and places; the sufficiency and the manifest weight of the
evidence; the trial court’s failure to merge the aggravated murder and felonious assault
offenses and two of the rape offenses; and the length of his sentence.
{¶ 2} Because the trial court committed plain error in failing to find that felonious
assault and aggravated murder are allied offenses of similar import, the matter is
remanded for resentencing with the instruction that the felonious assault and aggravated
murder convictions be merged and the state be permitted to elect which allied offense it
will pursue against Marshall. The trial court’s judgment is affirmed in all other aspects.
I. Facts and Procedural History
{¶ 3} On April 15, 2000, Toledo police responded to a possible homicide
involving 19-year-old, C.L. It was later determined that C.L. was raped and strangled.
On August 21, 2000, Toledo police received a sexual assault call where victim A.A., then
17 years old, stated that the suspect threatened her with a box-cutter or knife and
vaginally raped her. Less than two months later, on October 2, 2000, S.S.-M., then 13
years old, reported to Toledo Police that an unknown individual forced her into a
residential backyard performed oral sex on her and vaginally raped her.
{¶ 4} Unknown DNA profiles were identified from the swabs collected from each
victim. In early 2021, Marshall’s DNA was confirmed as present in all three cases.
Following the DNA match, the Grand Jury returned an indictment charging Marshall
2. with aggravated murder, murder, rape, and felonious assault, with sexual motivation and
repeat violent offender (“RVO”) specifications (Counts 1-4, relating to C.L.); two counts
of rape with RVO specifications (Counts 5-6, relating to A.A.); and three counts of rape
with RVO specifications (Counts 7-9, relating to S.S.-M.).
{¶ 5} On November 5, 2021, Marshall filed a motion for relief from prejudicial
joinder, arguing that separate trials were warranted on the counts as to each individual
because of the substantial danger that Marshall would be found guilty based on the jury’s
belief that he had a propensity to commit the alleged acts. The state countered that trying
the counts jointly was proper as the evidence was simple and direct as to each incident
and that the evidence would be admissible as proof of identity if the counts were tried
separately. The state further argued that policy considerations, including judicial
economy and inconvenience to witnesses, supported a joint trial. Agreeing with the state,
on February 1, 2022, the trial court denied the motion.
{¶ 6} The following evidence involving the murder and rape of C.L., and the rapes
of A.A. and S.S.-M., was presented during a four-day jury trial.
A. C.L.
{¶ 7} E.L. testified that she and C.L. had been friends since high school. E.L.
explained that C.L. and her boyfriend, Zeke, were involved in a “toxic” relationship, i.e.
fighting and arguments, that C.L. was trying to terminate. The pair briefly lived together;
C.L. moved out but Zeke still “stalked” her. E.L. admitted that C.L. was still getting
3. money and gifts from Zeke that she would procure by occasionally having sex with him.
E.L. stated that C.L. had performed as an exotic dancer and, on occasion, “contracted”
with clients for sex. According to E.L., for her safety C.L. would always let her know
when, where, and who she was with. According to E.L., C.L. had no planned
arrangements around the time of her death. E.L. noted C.L.’s strong opposition to having
sex with two different men on the same day.
{¶ 8} On August 14, 2000, around 12:00 p.m., E.L. testified that she and C.L. met
at C.L.’s apartment on Robinwood Avenue in central Toledo. They immediately left in
C.L.’s new Jeep to drive around and “show it off.” While out, they stopped in north
Toledo at C.L.’s mother’s house and said hello to her neighbor, A.P.
{¶ 9} The pair returned to C.L.’s apartment to get ready to go out for the evening.
They left the house at approximately 6:30-7:00 p.m. and continued to drive around
making stops at various “hang out” points. Around 11:30 p.m.-12:00 a.m., they returned
to A.P.’s house as he was having a party. E.L., C.L., and A.P. were in a bedroom when
C.L. and A.P. began kissing; E.L. left the room. After C.L. reappeared, they left the
house and went to three after-hours clubs. Around 4:30-4:45 a.m. they returned to C.L.’s
apartment and E.L. went home. The two were meeting later that day to move C.L. into
E.L.’s apartment.
{¶ 10} A.P. testified that he and C.L. had sexual relations while in his room in the
early morning of April 15, 2000. Though intimate on a few prior occasions, they were
4. mainly just friends. A.P. testified that C.L. had been dating a man from Detroit; he did
not recall any other boyfriends.
{¶ 11} C.L.’s landlord on Robinwood, Theodora Wilson, testified by video
deposition. Her statements regarding the day of the murder were harmonious with and
testified to by Toledo Police Detective Timothy Campbell. She stated that on the date of
C.L.’s murder she lived in a home on Robinwood that had an apartment in the back with
a separate side entry. Wilson stated that C.L. rented the apartment and had been there
less than one month when Wilson asked her to move out due to concerns over loud noises
and voices.
{¶ 12} Wilson recalled that C.L.’s boyfriend helped her move in to the apartment.
She described him as a large black man with a shaved head and a mustache. Wilson
testified that on April 15, 2000, at approximately 4:30-5:00 a.m., she was awakened to
the sound of loud music from a black car with silver trim parked across the street. The
driver exited the vehicle, walked up the driveway, and rang the doorbell to C.L.’s
apartment. From her kitchen window, Wilson told him to leave because she was not
home. She stated that man resembled Zeke, the man who helped C.L. move into the
apartment.
{¶ 13} Wilson stated that after C.L. returned home around 5:00-5:15 a.m., the man
again exited his vehicle, talked with C.L., and then the pair entered her apartment.
Shortly thereafter, Wilson contacted police on a noise complaint, stating that it sounded
5. like furniture was being moved in C.L.’s apartment. When police arrived, Wilson sent
them away stating the issue had resolved. Wilsons’s 911 call was played for the jury
during the testimony of responding Toledo Police Officer Robert Britt.
{¶ 14} That afternoon and after repeatedly calling to her, Wilson entered C.L.’s
apartment. She discovered C.L. deceased and lying naked on the living room floor. She
ran down to her home and called 911. Wilson acknowledged similarities between the
photograph of Zeke and the sketch and computer-generated images of Marshall.
{¶ 15} Toledo Police officer, Michael Mugler, testified that at 3:00 p.m. on
April 15, 2000, he and his partner were dispatched Code 3 (red lights and sirens) and
Code 18 (a deceased person) to the Robinwood address to assist the fire crews on scene.
They secured the scene logging who came and went and for what purpose. C.L.’s vehicle
was towed for evidentiary purposes.
{¶ 16} Mugler stated that he encountered Zeke walking down the driveway. Zeke
identified himself as C.L.’s boyfriend and that he wanted to know what was happening.
He was eventually transported to the police station for questioning. Zeke was cleared of
any wrongdoing after initially being charged with C.L.’s murder.
{¶ 17} Detective Terry Cousino, the on-call Toledo Police investigator,
photographed and videotaped the crime scene. During his testimony, the photographs
and video were published for the jury and were admitted into evidence. Cousino stated
that he recovered no useable fingerprints. The physical evidence collected included
6. C.L.’s underwear which was found around her right ankle, a black bra that was around
her torso, and a flowered dress that was covering her head. Cousino attended the autopsy
the following day. Cousino testified that he had no further involvement in the case until
reviewing it as part of the cold case unit.
{¶ 18} Lucas County Deputy Coroner Cynthia Beisser performed an autopsy on
C.L. Dr. Beisser testified regarding the external and internal trauma to C.L.’s neck.
Photographs documenting the injuries were admitted into evidence. Dr. Beisser swabbed
multiple areas of C.L.’s body to submit for DNA testing. She testified that the toxicology
report showed a very low level of alcohol and no illegal drugs in C.L.’s system. Dr.
Beisser ruled that C.L.’s cause of death was strangulation and the manner of death was
homicide. Her report was admitted into evidence.
B. A.A.
{¶ 19} Toledo Police Lieutenant Phillip Cook testified that on August 21, 2000,
Toledo Police responded to a rape call at Dorr Street and Byrne Road in Toledo, Lucas
County, Ohio. The victim, 17-year-old A.A., stated that when she was walking home
from work an unknown individual pressed a box cutter to her throat, led her to a field
behind a business, and forced her to have vaginal intercourse. A.A. stated that the
suspect wore a condom for part of the rape; the officers were able to collect the condom
and wrapper from the field as evidence.
7. {¶ 20} A.A. described the victim as a black man, bald with a mustache, heavy set
at approximately 250 pounds, and average height of 5’9” or 5’10”. Following the rape,
A.A. ran to a nearby home and the resident called her grandmother who then took her to
the hospital where a rape kit was completed. An unknown DNA profile was developed
from the swabs in the rape kit. A.A.’s trial testimony mirrored her statements to police.
C. S.S.-M.
{¶ 21} On October 3, 2000, Toledo Police were dispatched to a residential
backyard on Bryant Court in Toledo, Lucas County, Ohio, following the reported a rape
of 13-year-old S.S.-M. S.S.-M. stated that she was walking back home from her
grandmother’s house when a man grabbed her, threatened to kill her, and took her behind
a house where he performed sexual acts on her including oral sex, digital, and vaginal
penetration. A rape kit was performed on S.S.-M. and sent for DNA testing. A DNA
profile of an unknown suspect was recovered.
{¶ 22} S.S.-M. described her assailant as brown-skinned, big mustache, bald, a big
belly, dark spots, and average height. A composite sketch of the suspect was created
from a facial identification catalog. It was admitted into evidence. S.S.-M.’s trial
testimony was consistent with her statements to police.
D. The Investigation
{¶ 23} Lucas County cold case investigator Jay Gast, familiar with the case from
his tenure with the Toledo Police Department, testified that in 2005, the DNA profiles in
8. all three cases were linked to a single, unknown suspect. In 2018, after researching tools
for developing suspects in cold cases, he contacted the Ohio Bureau of Criminal
Investigation (“BCI”) about allocating funds to contract with a private lab to conduct
genetic testing on the unknown suspect’s DNA. The tests included genetic genealogy
research which essentially builds a family tree, or kinship, from the subject’s DNA and
DNA phenotyping which uses DNA in conjunction with all available physical descriptors
to develop a composite image, including an age progression image. The images were
admitted into evidence.
{¶ 24} As to the kinship DNA research, Gast stated that to increase accuracy the
company requested additional DNA samples from specific individuals. Gast testified that
they obtained samples from two individuals in the Zanesville, Ohio area but that despite
the development of additional leads, the subject DNA was not definitively identified.
The company also identified a male, Robert Marshall, in the Chicago area.
{¶ 25} In January 2021, Gast received a call from the BCI stating that a
preliminary DNA match in the cases was uploaded to the national DNA database from
Indiana. Marshall was identified as the match. Gast confirmed that Marshall was in the
Toledo area in 2000 and had been issued an Ohio driver’s license ten days prior to C.L.’s
murder. Marshall’s license photo was admitted into evidence.
{¶ 26} Gast testified that on January 15, 2021, he went to Indiana, secured a
search warrant, and procured buccal (or inner cheek) swabs from Marshall. The samples
9. were returned to Toledo and placed into police property. While speaking with Marshall,
Gast learned that Marshall had lived in Chicago and had relatives in Chicago; Robert
Marshall, his deceased father, and his brother, also Robert Marshall.
{¶ 27} Erika Jimenez, a forensic scientist at the BCI, conducted a comparative
analysis of the DNA standard from Marshall and the samples from C.L., A.A., and S.S.-
M. and issued multiple reports documenting the findings. The January 20, 2021 report
contained the analysis of the DNA standard from Marshall and another individual and
swabs collected from the rape kit of S.S.-M. Marshall’s DNA was found in the panel of
S.S.-M.’s underwear. On April 19, 2021, a supplemental report was issued finding that
the vaginal swabs from S.S.-M. contained Marshall’s DNA.
{¶ 28} A second January 20, 2021 report analyzed three swabs collected in A.A.’s
rape kit and DNA standards from Marshall another individual. Marshall’s DNA was
found on swabs collected from A.A.’s thigh. A follow-up report issued on April 21,
2021, included an analysis of swabs taken from the condom recovered as evidence.
Marshall’s DNA was found on trace debris from the condom ring.
{¶ 29} The January 27, 2021 report analyzed various swabs taken from C.L. and
DNA standards from multiple subjects including Marshall. The vaginal, rectal,
abdominal, and thigh swabs all contained Marshall’s DNA. A subsequent report found
no traceable DNA on C.L.’s dress.
10. E. Jury Verdict and Sentencing
{¶ 30} At the close of evidence, the jury convicted Marshall on all counts and
sexual motivation specifications. An RVO specification hearing was held and the court
found that the state met it burden. As to C.L., on Marshall’s aggravated murder
conviction, with a sexual motivation specification, the trial court sentenced him to life in
prison with parole eligibility after 20 years and an additional ten years for the RVO
specification. The murder conviction merged. For rape, Marshall received a ten-year
mandatory sentence with an additional ten years for the RVO. Marshall was sentenced to
eight years in prison for felonious assault, with an additional ten-year term for the RVO
specification.
{¶ 31} As to Count 5, the rape relating to A.A., Marshall was ordered to serve a
mandatory ten years of imprisonment and an additional ten years for the RVO
specification. A nolle prosequi was entered as to Count 6, rape.
{¶ 32} Finally as to Counts 7-9, involving S.S.-M., Marshall was sentenced to a
mandatory sentence of ten years imprisonment on all three rape convictions with an
additional ten-year imprisonment term on each for the RVO specification.
{¶ 33} Marshall’s sentences on Counts 1, 3, 5, 7, 8, and 9 were ordered to be
served consecutively to each other and concurrent with Count 4 for a minimum sentence
of 130 years. This appeal followed.
11. II. Assignments of Error
{¶ 34} Marshall timely appealed his conviction and now raises five assignments of
error:
I. The trial court abused its discretion in denying Appellant’s Motion
for Relief from Prejudicial Joinder, pursuant to Crim.R. 14.
II. The trial court abused its discretion by denying Appellant’s
motion for acquittal as to the charges related to victim C.L. pursuant to
Crim.R. 29, because Appellant’s convictions were not supported by
sufficient evidence.
III. Appellant’s convictions for the charges associated with victim
C.L. were not supported by the manifest weight of the evidence.
IV. The trial court abused its discretion by failing to merge all
appropriate sentences on the basis of allied offenses of similar import.
V. The trial court abused its use of consecutive sentences by
imposing a 130-year (minimum) sentence which is disproportionate to the
harm cased in this matter.
III. Law and Analysis
A. Joinder
{¶ 35} Marshall’s first assignment of error challenges the trial court’s denial of his
motion to sever the trials on the charges relating to C.L., A.A., and S.S.-M. Marshall
12. argues that the joint trial on all counts resulted in the jury unfairly convicting him based
on its belief that he had a propensity to commit the crimes. Marshall specifically argues
that joinder of the rape charges in relation to A.A. and S.S.-M. with the aggravated-
murder and rape charges of C.L. created the possibility of substantial prejudice by linking
the similarity of the rape offenses with C.L.’s rape and murder. The state argues that the
evidence as to all three victims was simple and direct and easily separated. The state
further argues that the identity of the assailant was a “material issue in dispute” and
involved evidence that would be admissible in each case, even if tried separately.
{¶ 36} In general, “[t]wo or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charges * * *
are of the same or similar character.” Crim.R. 8; State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423, 108 N.E.3d 1, ¶ 43. Permitting joinder “conserves resources by
avoiding duplication inherent in multiple trials and minimizes the possibility of
incongruous results that occur in successive trials before different juries.” State v.
Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988).
{¶ 37} Crim.R. 14 permits a defendant to request severance of the counts in an
indictment “‘on the grounds that he or she is prejudiced by the joinder of multiple
offenses.’” Clinton at ¶ 44, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,
767 N.E.2d 166, ¶ 49. Specifically, the rule states:
13. If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by
such joinder for trial together of indictments, informations or complaints,
the court shall order an election or separate trial of counts, grant a
severance of defendants, or provide such other relief as justice requires.
{¶ 38} “A claim of prejudice depends on whether the advantages of joinder and
avoidance of multiple trials are outweighed by the right of a defendant to be tried fairly
on each charge.” State v. Reynolds, 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40, ¶ 31.
{¶ 39} The defendant “has the burden of furnishing the trial court with sufficient
information so that it can weigh the considerations favoring joinder against the
defendant’s right to a fair trial.” State v. Torres, 66 Ohio St.2d 340, 340, 421 N.E.2d
1288 (1981). “But even if the equities appear to support severance, the state can
overcome a defendant’s claim of prejudicial joinder by showing either that (1) it could
have introduced evidence of the joined offenses as “other acts” under Evid. R. 404(B) or
(2) the ‘evidence of each crime joined at trial is simple and direct.’” Clinton at ¶ 44,
quoting State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). When the state
shows that the evidence of each crime is simple and direct, it is not required to meet the
stricter “other acts” admissibility test. State v. Robinson, 6th Dist. Lucas No. L-09-1001,
2010-Ohio-4713, ¶ 24, citing Lott at 163-164, State v. Hicks, 6th Dist. Lucas Nos. L-04-
1021, L-04-1022, 2005-Ohio-6848, ¶ 30, 41.
14. {¶ 40} “Evidence is ‘simple and direct’ if (1) the jury is capable of readily
separating the proof required for each offense, (2) the evidence is unlikely to confuse
jurors, (3) the evidence is straightforward, and (4) there is little danger that the jury
would ‘improperly consider the testimony on one offense as corroborative of the other.’”
State v. Bradshaw, 3d Dist. Logan No. 8-22-09, 2023-Ohio-1244, ¶ 13, quoting State v.
Valentine, 5th Dist. Fairfield No. 18 CA 27, 2019-Ohio-2243, ¶ 48, quoting State v.
Wright, 4th Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 52. Evidence offered to prove
a joined offense may be complex so long as it is not confused with evidence offered to
prove the other joined offenses. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140
N.E. 3d 616, ¶ 110 (“Although the evidence presented to prove the murders was a bit
more complex than the evidence presented to prove the assault, it was not confusing”).
{¶ 41} Generally, an appellate court reviews a trial court’s denial of a Crim.R. 14
motion to sever for an abuse of discretion. Clinton at ¶ 46. When, however, a motion to
sever is made at the outset of a trial, it must be renewed at the close of the state’s case or
at the conclusion of all of the evidence so that a Crim.R.14 analysis may be conducted in
light of all the evidence presented at trial. State v. Rojas, 6th Dist. Lucas No. L-11-1276,
2013-Ohio-1835, ¶ 34; Reynolds, 6th Dist. Lucas No. L-16-1080, 2018-Ohio-40, at ¶ 27.
Failure to renew the motion forfeits all but plain error on appeal. Id. The renewed
motion allows the trial court to examine any prejudice resulting from the joinder in light
15. of the evidence introduced at trial. State v. Hoffman, 9th Dist. Summit No. 26084, 2013-
Ohio-1021, ¶ 8.
{¶ 42} The record of this case contains no indication that Marshall renewed his
motion to sever at any point during trial; thus, review is limited to plain error. Plain error
affects substantial rights. Crim.R. 52(B). “Notice of plain error under Crim.R. 52(B) is to
be taken with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus. “Plain error is not present unless the outcome of
the trial would have been different but for the complained of error.” Reynolds, at ¶ 29.
{¶ 43} In Clinton, supra, the court rejected the argument that joinder of rape
charges of one victim with rape and murder charges involving three additional victims
would confuse the jury and was highly prejudicial. The court explained that the jury is
capable of segregating the proof of multiple charges when the evidence of each crime is
uncomplicated. Id. at ¶ 52, citing Hamblin, 37 Ohio St.3d at 159, 524 N.E.2d 476 (1988).
{¶ 44} Here, the evidence the state offered to prove Marshall’s rape and murder of
C.L. and the rapes of A.A. and S.S.-M. was simple and direct. The crimes occurred on
different dates, times, and places and involved three separate victims. C.L.’s friend and
her landlord narrated the events surrounding her rape and murder. A.A. and S.S.-M. each
testified regarding the events specific to their cases. Police testimony regarding the
investigation of the three separate incidents was clear and concise. There is nothing to
16. indicate that the jury was incapable of separating the evidence as to each victim. Further,
the jury was specifically instructed:
The charges set forth in each count in the indictment constitute a
separate and distinct matter. You must consider each count and the
evidence applicable to each count separately and you must state your
findings as to each count uninfluenced by your verdict as to any other
count.
The jury is presumed to follow the court’s instructions. Clinton at ¶ 52.
{¶ 45} The trial court did not err in denying Marshall’s motion to sever because
the evidence presented for each offense was simple and direct. Marshall’s first
assignment of error is not well-taken.
B. Sufficiency and Manifest Weight of the Evidence
{¶ 46} In his second and third assignments of error, Marshall argues that his
convictions relating to C.L. (Counts 1-4) are based on insufficient evidence and are
against the manifest weight of the evidence.
{¶ 47} “Insufficiency and manifest weight are distinct legal theories.” State v.
Fenderson, 6th Dist. Erie No. E-21-018, 2022-Ohio-1973, ¶ 73. “In reviewing a record
for sufficiency, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’” Id., quoting State v. Jenks, 61
17. Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In contrast, when
reviewing a manifest weight claim,
“[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
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. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.”
Id., quoting State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 48} Marshall was convicted of the aggravated murder, murder, rape, and
felonious assault of C.L., with RVO specifications. In 2000, aggravated murder, in
violation of R.C. 2903.01(B) and (F), provided: “No person shall purposely cause the
death of another or the unlawful termination of another’s pregnancy while committing or
attempting to commit, * * * rape, * * *.” Murder with a sexual motivation is established
by proof that a person caused the death of another as a proximate result of the offender’s
committing or attempt to commit a violent first or second-degree felony. R.C.
2903.02(B) and (D). Rape, R.C. 2907.02(A)(2) and (B), prohibits an individual from
threatening or physically forcing an individual to engage in sexual conduct. Finally,
18. felonious assault, R.C. 2903.11(A)(1) and (D), prohibits knowingly causing serious
physical harm to another.
{¶ 49} Marshall argues that the evidence supporting the charges as to C.L. were
insufficient to submit to a jury because although Marshall’s DNA was found on C.L. both
externally and internally, there was no evidence of trauma which is indicative of force.
Marshall emphasizes C.L.’s work as an exotic dancer, her various male visitors, and the
testimony of C.L.’s landlord’s that her boyfriend, Zeke, who had helped her move in
three weeks prior, was the same man who came to C.L.’s door in the early morning of
April 15, 2000. Marshall incorporates the same arguments in support of his claim that his
convictions were against the manifest weight of the evidence.
{¶ 50} Contrary to Marshall’s assertions, there is sufficient evidence
demonstrating that he raped and killed C.L. The DNA evidence clearly demonstrates that
Marshall had sexual contact with C.L. The analysis of the vaginal and rectal swabs taken
from C.L. showed no other male contributors. Next, how C.L. was found— with her
dress around her neck, bra around her waist, and underwear around her ankle—
evidences a forced act. Further, the noise from the apartment around the time of the
murder was loud enough for the landlord to call the police. As to identity, while the
landlord testified that the suspect looked like Zeke after reviewing photos and sketches,
she admitted that Marshall and Zeke looked similar.
19. {¶ 51} Viewing all the evidence presented at trial in a light most favorable to the
state, a rational juror could have found the elements of each charge in Counts 1-4 proven
beyond a reasonable doubt. Additionally, the evidence presented does not establish that
the jury lost its way resulting in a manifest miscarriage of justice. Marshall’s second and
third assignments of error are not well-taken.
C. Marshall’s Sentence is not Contrary to Law
1. Allied Offenses
{¶ 52} In Marshall’s fourth assignment of error he argues that because the charges
as to C.L. constitute one continuous act, with a single animus, the offenses of rape and
felonious assault were allied and should have merged with his aggravated murder
conviction at sentencing. Marshall similarly argues that the rape offenses relating to
S.S.M. were one continuous act and that the convictions should have merged.
{¶ 53} R.C. 2941.25 codifies the constitutional protections of the Double Jeopardy
Clause prohibiting multiple punishments for the same offense. State v. Rogers, 6th Dist.
Erie Nos. E-21-027, E-21-031, 2022-Ohio-4126, ¶ 16. The section provides:
(A) 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.
20. (B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate animus
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 54} The test for determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, involves three questions:
“(1) Were the offenses dissimilar in import or significance? (2) Were
they committed separately? and (3) Were they committed with separate
animus or motivation? An affirmative answer to any of the above will
permit separate convictions. The conduct, the animus, and the import must
all be considered.”
State v. Bailey, Slip Opinion No. 2022-Ohio-4407, ¶ 10, quoting State v. Earley, 145
Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. “[T]wo 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.” Ruff at ¶ 23.
{¶ 55} “The defendant bears the burden of establishing his entitlement to the
protection, provided by R.C. 2941.25, against multiple punishments for a single criminal
21. act.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18,
quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987); State v. Smith, 6th
Dist. Lucas No. L-22-1141, 2023-Ohio-866, ¶ 10. “An appellate court reviews de novo
whether offenses should be merged as allied offenses under R.C. 2941.25. Smith at ¶ 10,
citing Bailey at ¶ 6. Further, the imposition of concurrent sentences is not equivalent to
merging allied offenses. State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950
N.E.2d 512, ¶ 17.
{¶ 56} Because Marshall did not raise the issue of merger or otherwise object to
the trial court’s imposition of the sentences, he has forfeited all but plain error. State v.
Hair, 6th Dist. Lucas Nos. L-22-1164, L-22-1165, 2023-Ohio-2422, ¶ 66, citing State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Plain error affects a
substantial right. Id.
{¶ 57} This court has previously noted that whether offenses are subject to merger
under R.C. 2941.25 “‘necessarily turns on an analysis of the facts, which can lead to
exceedingly fine distinctions.’” State v. Fisher, 6th Dist. Lucas No. L-22-1150, 2023-
Ohio-2088, ¶ 19, quoting Bailey at ¶ 11. Thus, a reviewing court “must consider the
defendant’s conduct and how the offenses were committed.” State v. Daniel, 6th Dist.
Lucas No. L-22-1231, 2023-Ohio-2800, ¶ 64, citing Ruff at ¶ 25. Separate sentences are
proper if offenses are committed separately, committed with a separate animus, or are
dissimilar in import. R.C. 2941.25; Ruff at paragraph three of the syllabus.
22. {¶ 58} Here, as to C.L., Marshall argues that the rape, felonious assault,
aggravated murder, and murder were one continuous bad act with the sole animus being
C.L.’s death. As to the rape and aggravated murder counts, the evidence demonstrates
that they were committed with a separate animus. C.L. was found with her clothing
partially removed and Marshall’s semen was found in her vagina and anus. There was no
evidence of any genital trauma resulting from the rape or that the rape in any way
contributed to C.L.’s death. C.L. died from manual strangulation lasting several minutes.
Thus, the acts were committed separately and with different instrumentalities. Upon
review, in this case the offenses of rape and aggravated murder do not merge.
{¶ 59} Marshall similarly argues that his felonious assault and aggravated murder
convictions stem from a single act and should have been merged at sentencing. The state
argues that the coroner’s testimony as to the contusions to C.L.’s face and neck suggests
that she suffered two independent harms.
{¶ 60} Reviewing Marshall’s conduct, C.L.’s strangulation was the same act
which caused her death—thus, there was no separate identifiable harm. Further, the state
indicated in its closing:
So what did Kenneth Marshall do? Felonious assault. So felonious
assault is causing, knowingly causing serious physical harm to another
person. The judge is going to define serious physical harm for you, but
strangling someone to the point of unconsciousness is serious physical
23. harm. It’s going to meet the definition to a T. Causing someone to lose
consciousness like that is serious physical harm. So if you think that her
death happened as a result of that strangulation, then you have found the
second count of murder as well as the felonious assault attached to it.
{¶ 61} Reviewing the arguments of the parties, it is clear that the entirely of C.L.’s
strangulation formed the basis of the felonious assault and murder charges. The murder
conviction was merged with Marshall’s aggravated murder conviction at sentencing.
Thus, the offenses the felonious assault and aggravated murder were also allied and
subject to merger at sentencing. Accordingly, the trial court committed plain error in
failing to merge the offenses.
{¶ 62} As to S.S.-M., Marshall contends that his rape convictions for vaginal rape,
digital penetration, and oral sex were one continuous act, with a single animus and
constitute allied offenses of similar import. Ohio law is clear that “multiple separate and
distinct acts of penetration will support multiple convictions and sentences, and oral,
anal, and vaginal rapes constitute separate and distinct acts.” State v. Hall, 6th Dist.
Lucas No. L-17-1069, 2018-Ohio-619, ¶ 10, citing State v. Hernandez, 12th Dist. Warren
No. CA2010-10-098, 2011-Ohio-3765, ¶ 48; State v. Pippin, 1st Dist. Hamilton Nos. C-
160380, C-160381, 2017-Ohio-6970, ¶ 49.
{¶ 63} At trial, S.S.-M. testified that Marshall performed oral sex on her, he
digitally penetrated her vagina, and he inserted his penis in her vagina. Because these
24. were separate acts, Marshall has failed to demonstrate entitlement to the protections
against multiple punishments for the offenses relating to S.S.-M.
{¶ 64} Accordingly, Marshall’s fourth assignment of error is well-taken, in part.
2. Proportionality
{¶ 65} Marshall’s final assignment of error asserts that the court erred in
sentencing him to six consecutive sentences for an aggregate minimum of 130 years of
imprisonment. Because Marshall’s claim regarding allied offenses is meritorious, in part,
his proportionality argument is moot and will not be addressed. Marshall’s fifth
IV. Conclusion
{¶ 66} For the foregoing reasons, the judgment if the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. The matter is remanded to the
trial court for a new sentencing hearing to merge the felonious assault and aggravated
murder convictions and permit the state to elect which allied offense Marshall is to be
sentenced on. The parties are to evenly share the costs of this appeal pursuant to App.R.
24.
Judgment affirmed, in part, and reversed, in part, and remanded.
25. State of Ohio v. Kenneth Marshall L-22-1207
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
26.