State v. Oghojafor

2023 Ohio 44, 205 N.E.3d 687

• Court: Ohio Court of Appeals
• Decided: January 9, 2023
• Docket: CA2021-07-080
• Status: Published

Opinion

[Cite as State v. Oghojafor, 2023-Ohio-44.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-07-080

: OPINION - vs - 1/9/2023 :

FIDELIS O. OGHOJAFOR, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2020-12-1532

Michael T. Gmoser, Butler County Prosecuting Attorney, and John Heinkel, Assistant Prosecuting Attorney, for appellee.

Charles H. Bartlett, Jr., for appellant.

BYRNE, J.

{¶ 1} Fidelis Oghojafor appeals from his convictions for kidnapping and domestic

violence in the Butler County Court of Common Pleas. For the reasons detailed below, we

affirm his convictions. Butler CA2021-07-080

I. Procedural and Factual Background

{¶ 2} In December 2020, a Butler County grand jury indicted Fidelis on one count

each of kidnapping ("Count One"), rape ("Count Two"), felonious assault (serious physical

harm) ("Count Three"), and domestic violence ("Count Four"). The indictment stemmed

from allegations made by Fidelis' wife, Theresa Oghojafor. Theresa alleged that she was

estranged from Fidelis, that she woke up to find him in her bed, and that he forcibly

restrained and sexually assaulted her. The matter proceeded to a jury trial.

{¶ 3} Because Fidelis makes arguments involving the issue of race, we note that

Fidelis is black and Theresa is white.

A. Voir Dire

{¶ 4} During voir dire, the trial court and parties questioned potential jurors on

whether any had scheduling difficulties that could make participation in the trial

burdensome. Several jurors raised such concerns, including Juror 99, who stated that she

was a licensed funeral director and that her absence from her family business would cause

hardship. The state subsequently exercised one of its peremptory challenges on Juror 99.

Fidelis objected to the state's peremptory challenge to Juror 99 because the juror was black.

After the prosecutor provided race-neutral reasons for excusing Juror 99, the trial court

overruled the objection and excused the juror.

B. The Trial – Prosecution Case

{¶ 5} Because this case involves competing testimony by several witnesses, we will

summarize the witnesses' testimony separately.

1. Theresa Fidelis

{¶ 6} Theresa testified that Fidelis was her husband. They married in 2018 but had

known one another for eight or nine years.

{¶ 7} On November 6, 2020, Theresa was living at a residence in the city of

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Fairfield, Butler County, with seven children. Some of those children were her biological

children. Some were children of Fidelis' prior marriages. The two youngest children were

"Carly" and "David."1 Carly and David were both six years old and were Theresa's and

Fidelis' biological children.

{¶ 8} Theresa testified that Fidelis was only intermittently present at the residence.

He would "come in every few days. He would be gone for several days, then he would

come home for a few hours, visit the kids and leave. Sometimes he would just come and

go as he pleased." She considered him not living at the residence because "everything—

like his daily medicine, all of his shoes, all of his work clothes, everything that's important to

you and you use on a daily basis was not in the home." Theresa did not know where Fidelis

was staying when he was not at the residence.

{¶ 9} Prior to November 6, 2020, the last time Theresa could recall seeing Fidelis

was 15 days earlier, on October 22, 2020, which was the day after her son's birthday. She

had not communicated with Fidelis since.

{¶ 10} On the evening of November 5, 2020, Carly and David were both complaining

of bellyaches. Theresa, a nurse at Children's Hospital, was concerned that she might have

brought COVID home from work and infected the children. She tended to the children all

night. In the morning, she, Carly, and David all fell asleep in Theresa's bed. Fidelis was

not in the residence when they fell asleep.

{¶ 11} When Theresa woke up, she was on her side. She felt someone pulling her

panties down. She looked around and saw that Fidelis was "at the foot of me" and "on top

of me." Carly and David were not in the room. She had not heard the children leave.

{¶ 12} Theresa asked, "What are you doing?" but Fidelis did not answer. He had a

1. We are using fictitious names to protect the children's privacy.

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shirt on but was nude from the waist down. She told Fidelis, "Get off of me," turned onto

her back, and started to pull her panties back up. Simultaneously, Fidelis "put his whole

bodyweight on top of me." Theresa told Fidelis, "Get off of me," "don't touch me." He put

his right forearm on her neck. She said that she "kept trying to pull him off of me and saying

no. Get off of me. Don't touch me. I haven't seen you in days. Stay away from me. No.

Please stop."

{¶ 13} Theresa testified that Fidelis continued to press his right forearm against her

neck. She explained, "his right elbow would have rest on my left shoulder and his forearm

across my chest and neck." Then he started "sucking" on her right breast and with his left

hand he continued "to try to pull down my panties enough to have sex." Theresa said, "I

just kept fighting him. His forearm kept getting tighter and tighter on my neck, so I was

more focused on his arm because I was – I couldn't catch my breath. It was getting harder

to breathe."

{¶ 14} Theresa testified, "I was moving my hips and – and all of his bodyweight was

on me. I couldn't get him off me. I was like – kept begging him, please, get off of me. Stop.

Stop. I don't want this. I don't want – I'm not – I'm not doing this. Get off of me, please.

You're hurting me. I can't breathe. I turned my neck all the way to the right because I –

because I couldn't breathe. And I just – I just kept fighting him and begging him."

{¶ 15} Theresa testified that she then heard David at the bedroom door. David was

banging on the door, saying "Daddy, stop. Don't hurt Mommy." Theresa stated that she

started to cry, whispering to Fidelis to "please stop, please stop." She then heard Carly

banging on the door, "screaming for [Fidelis] to stop." At that point, she realized that her

bedroom door had been locked from the inside.

{¶ 16} Theresa testified that she "just kept fighting him." And then, "at one point, I

felt his fingers go into my vagina, so I just kept begging him to please stop, please stop,

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and fighting him. And I just kept fighting and fighting and fighting and eventually I was able

to get out from under him." She managed to push Fidelis off of her.

{¶ 17} She got off the bed and went out to see her children. She told them everything

was okay. After the children were calm, she took a long shower, because her shoulder

"hurt really bad" and because she had to go to work.

{¶ 18} When Theresa went to put on her clothes, Fidelis was sitting on the bed,

"playing with his phone." She testified, "I was hurt and I said, 'why'd you do that to me?'"

He did not respond and kept looking at his phone. She told him, "You really hurt me this

time." He continued to not respond. She then said, "I'm done. * * * You can't do this to me.

* * * Why'd you even come back? Just stay away." Fidelis finally responded, "this is my

house." She replied, "I pay for it; you don't. You're never here. Just leave me alone. Just

don't come back. Just come visit the kids and leave me alone." He replied that it was his

house and "I'll do what I want." She alternatively described him as saying, "I could do

whatever I want in this house." Theresa then said, "I'm done. You can't hurt me like this. I

want a divorce." Fidelis replied, "Okay. My girlfriend has money. She'll pay for it." Theresa

said, "Okay" and left.

{¶ 19} Theresa estimated that it was between 12:30 p.m. and 1:30 p.m. when she

woke up with Fidelis on top of her. That day, she needed to be at work between 3:00 p.m.

and 4:00 p.m.

{¶ 20} Driving to work, Theresa stated that her shoulder was "hurting," "throbbing"

and that "the pain just shot up to my neck." It was a pain she had never felt before and she

believed her collarbone was broken. She started crying. While passing Mercy Hospital in

Fairfield, she saw the emergency sign and decided to turn in. She called her friend, Joann,

who told her that she would not be able to work with a broken collarbone and convinced her

to go into the hospital. Theresa went into the emergency room.

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{¶ 21} While at the hospital, a police officer arrived and asked Theresa what

happened. She told the officer what Fidelis had done. Subsequently, a sexual assault

nurse examiner ("SANE") arrived at the hospital, met with Theresa, and conducted an

assessment. During this assessment, the SANE swabbed parts of Theresa's body for DNA.

{¶ 22} Theresa testified that the medical providers at the hospital instructed her to

follow up with an orthopedic surgeon as soon as possible and provided her with a referral.

About two weeks after her emergency room visit, she met with the orthopedic surgeon who

advised her not to lift anything and to give her shoulder time to heal. Theresa stated that

as of the trial date, over six months later, she was still experiencing pain in her arm. She

testified that she may have to have surgery. Theresa described various effects the injury

had had on her day-to-day life. She had difficulty carrying groceries and carrying her purse.

She was unable to carry a "little backpack" when she took her kids to Kings Island. She

has to compensate for the pain in her left arm by using her right arm more than she normally

would. She self-treats with Tylenol and certain range-of-motion exercises.

{¶ 23} Theresa explained that if it had not been for the pain she experienced, she

would not have reported her allegations against Fidelis.

2. Joann Graham-Case

{¶ 24} Joann Graham-Case testified that she and Theresa were coworkers and that

she had known Theresa since they were in nursing school together. On November 6, 2020,

she recalled receiving a phone call from Theresa at 3:15 p.m. Theresa told her that Fidelis

had raped her and that she had been hurt, and that her neck was hurting. Theresa told

Joann that she was on her way to work. Joann told her there was no way Theresa could

work with the way she was feeling and that she needed to go to the hospital. Theresa said,

"I'm right here" (referring to the hospital). Joann testified that she then convinced Theresa

to go into the hospital.

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3. Amber Kelly

{¶ 25} Amber Kelly testified that she was Theresa's best friend and that they had

previously worked together. She recalled Theresa contacting her via text message on

November 6, 2020, at 3:30 p.m. Based on that text message, Amber went to Mercy Fairfield

hospital as fast as she could. She arrived at approximately 4:30 p.m. after dropping off her

son. She testified that she was the one who called police to the hospital.

4. Jessica Oakley

{¶ 26} Jessica Oakley testified that she was a registered nurse and was also a SANE

for Butler County. On November 6, 2020, she was directed to assess Theresa at Mercy

Fairfield Hospital. She arrived at 7:35 p.m. and documented her findings.

{¶ 27} Jessica described how part of her process involved obtaining an "assault

history" from the patient, which history would dictate the physical examination needed to

preserve potential evidence. Jessica summarized the assault history narrative that Theresa

had provided her on November 6, which narrative mirrored the testimony given by Theresa

during her direct examination. That narrative led to Jessica collecting various DNA samples

from certain parts of Theresa's body, including a swabbing of Theresa's right nipple.

{¶ 28} Jessica testified that Theresa reported pain in her left shoulder. Jessica did

not observe any visible injuries in that area.

5. DNA Evidence

{¶ 29} A police sergeant testified that police obtained DNA standards for Fidelis and

Theresa and submitted those standards to the Ohio Bureau of Criminal Investigation. A

forensic scientist with BCI testified that the swab taken from Theresa's right nipple contained

Fidelis' DNA profile and that the estimated frequency of occurrence of Fidelis' DNA profile

would be rarer than one in one trillion unrelated individuals.

6. Photographic and Documentary Evidence

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{¶ 30} The state submitted photographs into evidence depicting the residence

including the bedroom where the alleged offenses took place. A photograph taken at the

hospital of Theresa's left shoulder area was also admitted into evidence. This photograph

does not depict an obvious injury. The state further submitted medical records from

Theresa's emergency room visit and from her subsequent visit with an orthopedic physician.

C. The Trial – Defense Case

1. Fidelis Oghojafor

{¶ 31} Fidelis testified that he lived at the Fairfield residence with Theresa and their

children. He was employed as a correctional officer at the Dayton Correctional Institute.

{¶ 32} On November 6, 2020, he was working the night shift. He arrived home from

work at around 6:45 a.m. Fidelis testified that his normal, daily routine upon arriving home

was to take Carly and David to school. He intended to take Carly and David to school, but

he saw that Theresa was asleep in her bed and that Carly and David were with her sleeping

on his side of the bed. So, he laid down on David's mattress, which was a "little mattress"

on the bedroom floor, and fell asleep.

{¶ 33} Fidelis testified that he woke up at 11:15 a.m. Theresa was "lying down

texting." He went to the bathroom, then he heard Carly and David downstairs. He asked

Theresa, "Why they didn't go to school?" She did not respond. He then sat on the bed,

tapped Theresa on her thigh, and repeated, "Why didn't they go to school?" Theresa

responded, "Don't touch me, don't talk to me." Fidelis explained that he and Theresa "had

some issues going on for almost three – three or four months."

{¶ 34} Theresa then got up and closed the door. Either Fidelis or Theresa said, "Let's

talk." Then Theresa said, "I want a divorce." Fidelis replied, "Okay. How much will it cost?"

She said, "Two grand." Fidelis said, "Okay, I'll pay." She asked how he was going to pay,

and he said "The same way I've been paying the bills. That's how I'm going to pay the

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divorce money."

{¶ 35} Fidelis testified that by then it was almost noon. Theresa was supposed to

leave for work at 1:00 p.m. Fidelis told Theresa that he was not going to continue this

conversation until Saturday, when they would have the entire day to talk about it.

{¶ 36} Fidelis stated that Theresa left for work sometime between when he saw her

lying on the sofa at 1:30 p.m. and when he came downstairs after showering at 2:00 p.m.

Fidelis left for work at the correctional institute at about 2:45 p.m.

{¶ 37} Fidelis denied all of Theresa's accusations. He denied touching her (other

than tapping her thigh), denied assaulting her, denied holding her down, denied being

naked from the waist down, and denied attempting to have intercourse with her. When

asked whether he caused her any type of physical injury, Fidelis responded, "I don't beat

women. I don't push. I don't – I'm cautious of these signs. I know the consequences."

Fidelis summarized the extent of his interaction with Theresa that day as their engaging in

a 20-minute conversation, after which she showered and then left.

{¶ 38} On cross-examination, Fidelis denied that he ever touched Theresa's breast

that day and denied that he kissed her. The prosecutor then asked Fidelis whether he

recalled a telephone conversation he had with his sister from the jail. Fidelis said he could

not recall. Outside of the presence of the jury, the state refreshed Fidelis' recollection by

playing the audio recording. After playing the recording, the state questioned Fidelis

concerning his statements to his sister:

The prosecutor: And when your sister informed you Theresa was saying that you had raped her and that you had hurt her shoulder, you said I grabbed her breast and that was it?

Fidelis: No. What happened was I was in shock, you know, so what I said on that day, I hearing today [sic], I do not recall that saying because it was so much stress with what was going on. So that was kind of a slip of tongue when I said that. That's not what I meant.

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The prosecutor: Oh, so when you told your sister you did grab her breast but that that was it, that was just a slip of the tongue?

Fidelis: Yeah, because I wasn't, yeah.

The prosecutor: You had no idea at that point in time that your DNA was actually going to be found on her breast.

Fidelis: I'm well-educated. I know about DNA, but the shock that I was in jail for something that didn't happen, and I was telling [her] what was going on, I said that.

The prosecutor: So on Saturday, November 7, when your sister told you that Marie or Theresa was saying that you had raped her and that you broke her shoulder, you told her that you grabbed her breast and that was it, but that was a lie to your sister?2

Fidelis: Not exactly. Not exactly, that was a lie. I wasn't going to lie because –

The prosecutor: It was an incorrect statement.

Fidelis: [Indiscernible] yeah, because of the stress that I was. [Sic.]

The prosecutor then asked Fidelis about his statement that "I don't beat women" and asked

whether an ex-wife had previously accused him of domestic violence. Fidelis confirmed

that the ex-wife had alleged that he cut off her ponytail but he denied assaulting his ex-wife.

He stated that both he and his ex-wife called the police, the police arrested both of them,

and the case was dismissed.

D. Verdict and Appeal

{¶ 39} The jury returned guilty verdicts on Counts One and Four, kidnapping and

domestic violence. The jury found Fidelis not guilty of Counts Two and Three, rape and

felonious assault. The court entered the verdicts and sentenced Fidelis to a prison term.

2. "Marie" was another name used by Theresa.

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Fidelis appealed, raising five assignments of error, which we will address out of order.

II. Law and Analysis

A. Assignment of Error No. 1:

{¶ 40} APPELLANT, AN AFRICAN AMERICAN, WAS DENIED EQUAL

PROTECTION UNDER THE LAW WHEN THE TRIAL COURT STRUCK THE SOLE

AFRICAN AMERICAN JUROR[.] BATSON V. KENTUCKY, [476 U.S. 79, 106 S.Ct. 1712

(1986)].

{¶ 41} Fidelis contends that the trial court violated his equal protection rights when

the state exercised a peremptory challenge to exclude Juror 99, a black juror, and the court

overruled his objection brought pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712 (1986). The state counters that it provided a non-pretextual, race-neutral explanation

for excusing Juror 99 and that Fidelis failed to meet his burden to prove an improper racial

motivation.

1. Background

{¶ 42} During voir dire, the court asked the venire whether anyone had any

scheduling conflicts that could impact their ability to serve. Several jurors responded

affirmatively, including Juror 99. Juror 99 explained that she was a licensed funeral director

and that serving would be a "hinderance." She went on to explain that she and her father,

both funeral directors, operated a family funeral business and were conducting about two

funerals a day. She further explained that it was necessary "by law" to have a licensed

funeral director both at the funeral home and at the cemetery. Juror 99 stated that it was

"possible" she could serve, "if I have to." She had already scheduled one funeral every day

that week, and three on Friday.

{¶ 43} Juror 377, Juror 1, Juror 371, and Juror 829 also offered explanations for

difficultly serving. Juror 377 discussed having a previously scheduled medical appointment.

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Juror 1 stated that her daughter was having surgery the following day and she was providing

transportation. Juror 371, a single mother without family around to help, needed to take her

daughter to a previously scheduled surgery that week. Likewise, Juror 829 needed to drive

her husband to a medical appointment the next day.

{¶ 44} The court then asked if anyone had any physical or other problems that could

be a hindrance towards serving. Juror 99 again responded affirmatively. Juror 99 explained

that she wore a hearing aid and reads lips "a lot." She explained that she would need to be

"close" and that "[i]f I can see the witness stand and see their mouth, that'd be fine." She

also indicated she hears male voices more easily than female voices.

{¶ 45} The prosecutor then questioned the venire. The prosecutor asked Juror 99

follow-up questions regarding her ability to hear witnesses. Juror 99 again indicated that if

she could see the witnesses' lips, she would be okay and could understand what they were

saying. The prosecutor asked whether Juror 99 would feel comfortable raising her hand

and letting people know if she had difficultly hearing. Juror 99 confirmed that she could do

that.

{¶ 46} The prosecutor then asked whether any jurors felt like they would be too

distracted to serve. The prosecutor specifically asked Juror 99 whether concerns with her

work schedule would be a distraction and whether she could get her work "covered for the

next few days." Juror 99 responded that she would have to ask her father, and reiterated

how much work they had, including that they were operating 50 funerals per month. She

indicated that if she had to serve on the jury, she would tell her father and that "I'll have to

let him know that he has to try to figure it out." She added that "if he has to turn families

away or they have to come in after hours or something, that'll be something he has to

decide."

{¶ 47} During defense counsel's examination of the venire, he greeted the jurors and

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asked, "How's everybody?" The venire responded in unison, "Good." Defense counsel

then apparently directed a comment towards Juror 99, stating, "You all right? Let me know

if you have a problem hearing me, all right?" Juror 99 responded, "No, you're fine."

{¶ 48} During peremptory challenges, the parties took turns excusing jurors. The

state exercised its final peremptory challenge on Juror 99. The defense raised a Batson

objection.

{¶ 49} The prosecutor then explained the use of the peremptory challenge, stating

that Juror 99 had discussed how it would be difficult for her to serve because of her position

as a funeral director, and that the family business' loss of customers during her jury service

could be a distraction. The prosecutor also observed that when the defense counsel had

asked the venire to raise their hands if they were willing to be here and participate on the

jury, Juror 99 had been the last person to raise her hand.

{¶ 50} In response, defense counsel stated that Juror 99 had said that she could

serve despite the hardship. In addition, defense counsel indicated that Juror 99 was the

sole African American prospective juror and that it was very important that they have

diversity on the jury.

{¶ 51} The trial court noted Juror 99's comments regarding her difficulty serving on

the jury due to her occupation. The court also noted that defense counsel had not argued

that the state challenged Juror 99 based on her race, but rather had provided "reasons and

justifications as to why she should remain on the jury." The court concluded that defense

counsel had not demonstrated that the state's challenge was racially motivated. The court

found that the race-neutral reasons proffered by the state for challenging Juror 99 were

sufficient and excused Juror 99.

2. Analysis of Batson Challenge

{¶ 52} The Equal Protection Clause forbids the state's use of peremptory challenges

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to exclude potential jurors based solely on their race. Batson, 476 U.S. at 89. In Batson,

the United States Supreme Court set forth a three-prong test for determining whether a

prosecutor's use of a peremptory challenge is racially motivated. State v. Smith, 12th Dist.

Butler No. CA2009-02-038, 2010-Ohio-1721, ¶ 85.

{¶ 53} First, the opponent of the peremptory challenge must make a prima facie case

of racial discrimination by showing that the state used a peremptory challenge to exclude a

potential juror based on race. Id., citing Batson at 96. Second, if the opponent makes a

prima facie case, the burden shifts to the state to offer a race-neutral explanation for the

peremptory challenge. Id., citing Batson at 97. Third, the trial court must determine whether

the prosecutor's race-neutral explanation is credible or is instead a pretext for

unconstitutional discrimination. Id. at ¶ 86, citing State v. McCuller, 12th Dist. Butler No.

CA2005-07-192, 2007-Ohio-348, ¶ 11.

{¶ 54} The first part of the three-prong Batson test asks whether Fidelis has made a

prima facie case of racial discrimination by showing the state used a peremptory challenge

to exclude Juror 99 based on race. Batson at 96. Here, the trial court made no ruling on

whether Fidelis made a prima facie showing of racial discrimination. Rather, Fidelis

objected to the state's peremptory challenge to Juror 99 and the trial court then indicated

that it believed that defense counsel was raising a Batson challenge, which defense counsel

confirmed. The court then stated it was the state's obligation to demonstrate why the

peremptory challenge was not racially motivated. The prosecutor went on to offer race-

neutral reasons to remove Juror No. 99 and the trial court overruled the Batson challenge

based on those reasons. "Once a prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate question of intentional

discrimination, the preliminary issue of whether the defendant has made a prima facie

showing becomes moot." Smith at ¶ 85, fn. 5, citing Hernandez v. New York, 500 U.S. 352,

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359, 111 S.Ct. 1859 (1991); State v. Hunter, 2d Dist. Montgomery No. 22201, 2008-Ohio-

2887, ¶ 14. We therefore do not need to consider whether Fidelis made a prima facie

showing, and we may proceed to the next step.

{¶ 55} The second part of the three-prong Batson test asks whether the state offered

a race-neutral explanation for the peremptory challenge. Batson at 97. As previously

stated, the state offered a race-neutral explanation for its peremptory challenge of Juror 99

when it explained its concern about Juror 99's potential to be distracted during jury service

due to her position as a funeral director and her family business' loss of customers as well

as her general lack of enthusiasm about serving.

{¶ 56} This brings us to the third part of the three-prong Batson test: whether the

prosecutor's race-neutral explanation is credible or is instead a pretext for unconstitutional

discrimination. Because the third stage of the analysis rests largely on the trial court's

evaluation of the prosecutor's credibility, a reviewing court gives the findings of the trial court

great deference. Smith, 2010-Ohio-1721 at ¶ 86. "'Deference is necessary because a

reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned

as the trial court is to make credibility determinations.'" Id. quoting Miller-El v. Cockrell, 537

U.S. 322, 339, 123 S.Ct. 1029 (2003). A trial court's determination that a defendant has

failed to establish purposeful discrimination will not be reversed on appeal unless that

determination can be said to be "clearly erroneous." McCuller, 2007-Ohio-348 at ¶ 11.

{¶ 57} Upon review, we find that the trial court did not err in concluding that the state's

race-neutral explanation was credible, and not pretextual. Juror 99 was one of the few

jurors who discussed serving on the jury as being a hindrance or a distraction. Juror 99's

comments clearly indicated to the court and parties that serving on the jury would be a

hardship on her and her family business. While she stated she could serve, "[i]f I have to,"

her obvious preference was to be excused. She explained that a result of informing her

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father of her jury service would be having to turn away clients from her family funeral home

business. Additionally, the state noted that Juror 99 was the last member of the venire to

raise her hand when defense counsel polled the jurors about their level of willingness to

serve on the jury. Juror 99's lack of enthusiasm in this regard simply underscored her

reluctance to serve and the hindrance she believed it would cause her family business.3

{¶ 58} Fidelis on appeal argues that there was evidence of racial bias because while

Juror 377 and Juror 1 (who were not black) both also expressed reasons why serving could

conflict with their schedules, the prosecutor spent "no amount of time quizzing these jurors"

about their ability to concentrate on the evidence and instead only "extensively questioned"

Juror 99.

{¶ 59} We do not agree that the prosecutor "extensively questioned" Juror 99. The

state's questioning of Juror 99 was brief and limited to those issues relevant to her concerns

with serving. Beyond that, there is an obvious reason that the prosecutor may have chosen

not to further question Juror 377 and Juror 1 concerning their potential hardships. During

the jury selection process, two jurors were excused for cause. Seven were peremptorily

excused. Despite this, neither Juror 377 nor Juror 1 made it on to the jury. Thus, the lack

of questioning by the prosecutor could simply be the result of both jurors being unlikely to

sit on the jury due to their position in the jury pool.

{¶ 60} Based on the foregoing, the state presented racially-neutral reasons for

excusing Juror 99. On the other hand, Fidelis offered no evidence of any racially-motivated

reasons by the state in peremptorily excusing Juror 99; he merely offered reasons why he

3. There were other issues that may have concerned the state with Juror 99 being seated on the jury. Juror 99 indicated that she suffered hearing loss and would need to be "close" to witnesses and be able to read their lips. Either the state or the defense could have concerns with a juror who would need to be carefully watching the lips of witnesses throughout the trial to ensure that they heard all the testimony. However, the prosecutor did not specifically mention this issue when she explained the state's reasoning for using a peremptory challenge with regard to Juror 99, so we do not discuss this issue in our analysis above.

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thought it would be beneficial for Juror 99 to serve on the jury. The trial court's decision

was not "clearly erroneous." McCuller, 2007-Ohio-348 at ¶ 11. We overrule Fidelis' first

assignment of error.

B. Assignment of Error No. 2:

{¶ 61} THE JURY'S FINDING APPELLANT GUILTY OF KIDNAPPING IN

VIOLATION OF O.R.C.§2905.01(A)(4) WAS AGAINST THE SUFFICIENCY AND WEIGHT

OF THE EVIDENCE.

{¶ 62} Fidelis argues that the state submitted insufficient evidence as a matter of law

to convict him of kidnapping. Specifically, Fidelis contends that the state failed to produce

evidence of restraint. For the same reasons, he argues that his conviction for kidnapping

was against the manifest weight of the evidence.

1. Standard of Review

{¶ 63} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Carroll, 12th Dist. Clermont Nos.

CA2007-02-030 and CA2007-03-041, 2007-Ohio-7075, ¶ 117; State v. Thompkins, 78 Ohio

St.3d 380, 386, (1997). In reviewing the sufficiency of the evidence underlying a criminal

conviction, the appellate court examines the evidence to determine whether such evidence,

if believed, would support a conviction. Carroll at ¶ 117. In reviewing a record for

sufficiency, "the 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.

{¶ 64} While the test for sufficiency requires a determination as to whether the state

has met its burden of production at trial, a manifest weight challenge concerns the

inclination of the greater amount of credible evidence, offered in a trial, to support one side

of the issue rather than the other. Id. at ¶ 118, citing State v. Wilson, 12th Dist. Warren No.

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CA2006-01-007, 2007-Ohio-2298, ¶ 34. In determining whether a conviction is against the

manifest weight of the evidence, the appellate 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 trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered. Carroll, 2007-Ohio-7075 at ¶ 118. However, while appellate review

includes the responsibility to consider the credibility of witnesses and weight given to the

evidence, these issues are primarily matters for the trier of fact to decide. Id.

{¶ 65} Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence necessarily includes a finding of

sufficiency. Thus, a determination that a conviction is supported by the weight of the

evidence will be dispositive of the issue of sufficiency. Carroll at ¶ 119.

2. Analysis of Evidence in Support of Kidnapping

{¶ 66} The court convicted Fidelis of kidnapping in violation of R.C. 2905.01(A)(4).

That statute provides, in pertinent part, that "[n]o person, by force, threat, or deception * * *

shall * * * restrain the liberty of the other person, for any of the following purposes: * * * [t]o

engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim

against the victim's will."

{¶ 67} Fidelis challenges whether the state submitted evidence that he restrained

Theresa. He argues that even in Theresa's version of events, when Theresa wanted to get

up out of bed, "she simply pushed him off of her and rolled out of bed." In addition, Fidelis

notes the evidence that once she was off the bed, Theresa had an unimpeded ability to

leave the home but instead chose to take a shower and prepare for work.

{¶ 68} Upon review of the trial record, we find that the state submitted sufficient

evidence of restraint. Theresa testified that after she initially said, "get off me," Fidelis "put

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his whole bodyweight on top of me." As she was repeatedly telling him to get off her, he

put his right forearm on her neck and "continued to press." His forearm kept getting "tighter

and tighter" on her neck and she could not catch her breath. She recollected that, "[I]t was

getting harder to breathe." Theresa testified that she was "moving her hips" but that "all of

his bodyweight was on me" and

I couldn't get him off me. I was like – kept begging him, please, get off of me. Stop. Stop. I don't want this. I don't want – I'm not – I'm not doing this. Get off me, please. You're hurting me. I can't breathe. I turned my neck all the way to the right because I – because I couldn't breathe. And I just – I just kept fighting him and begging him.

Eventually, the children were at the door banging and screaming for Fidelis to stop. Theresa

was then able to "push him off."

{¶ 69} This testimony was sufficient to prove that Fidelis restrained Theresa's liberty.

Specifically, Theresa testified that Fidelis put his entire body weight on her, pressed his

forearm against her neck to the point where she had trouble breathing, and that despite

moving her hips, she was unable to "get him off me." He continued to restrain her despite

her protests.

{¶ 70} In terms of the sufficiency of the evidence of restraint, Theresa's ability to

subsequently get off the bed by herself is of no significance. This simply could indicate that

Fidelis reduced or eliminated the force that he had previously been using to hold her in

place, possibly due to the children's pleas.

{¶ 71} With respect to the manifest weight of the evidence, all the arguments Fidelis

presents are challenges to Theresa's credibility. For instance, he questions why she did

not leave the home after the incident and why she would instead take a shower and prepare

for work. These are all issues that were squarely presented to the jury and which the jury

could consider in weighing Theresa's credibility. We defer to the factfinder on matters that

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affect witness credibility. State v. Statzer, 12th Dist. Butler No. CA2015-08-148, 2016-Ohio-

7434, ¶ 25, citing State v. Andrews, 12th Dist. Butler No. CA2009-02-052, 2010-Ohio-108,

¶ 46. Here, the jurors accepted Theresa's testimony regarding being restrained by Fidelis

notwithstanding these questions about her actions afterward. However, we would note that

given the domestic relationship between the accused and accuser, as well as the presence

of the parties' minor children, Theresa's response does not appear unusual. Accordingly,

we find that the greater weight of the evidence supports the conclusion that Fidelis

restrained Theresa, and that the jury did not lose its way when it convicted Fidelis of

kidnapping under R.C. 2905.01(A)(4). We overrule Fidelis' second assignment of error.

C. Assignment of Error No. 3:

{¶ 72} THE TRIAL COURT ERRED IN NOT GIVING A LIMITING INSTRUCTION

TO THE JURY THAT EVIDENCE INTRODUCED BY THE STATE OF PRIOR BAD ACTS

BY APPELLANT SHOULD BE CONSIDERED FOR PURPOSES OF CHARACTER ONLY

AND NOT FOR THE PURPOSE OF DEMONSTRATING THAT PRIOR ACTS PROVED

APPELLANT ACTED IN CONFORMITY THEREWITH.

{¶ 73} Fidelis contends that when the trial court permitted the state to elicit testimony

from him concerning his ex-wife's prior accusation that he engaged in domestic violence,

any relevance such evidence might have had was outweighed by its prejudicial effect.

Therefore, he argues, the court was obligated to mitigate any harm caused by the evidence

through a limiting instruction to the jury. He argues the court's failure to give such a limiting

instruction was reversible error.

{¶ 74} Fidelis' defense counsel did not request any limiting instruction at trial and did

not object to the lack of a limiting instruction. Therefore, our review of this issue is limited

to a determination of whether the court committed plain error in failing to instruct the jurors

regarding their consideration of the state's cross-examination. State v. Evick, 12th Dist.

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Clermont No. CA2018-03-016, 2019-Ohio-2791, ¶ 24.

1. Plain Error Standard of Review

{¶ 75} "Plain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court." Crim.R. 52(B). Crim.R. 52(B) places

three limitations on a reviewing court's decision to correct an error not raised before the trial

court. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). First, an error, "i.e., a deviation from

a legal rule," must have occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200 (2001), in

turn citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770 (1993). Second, the

error complained of must be plain, i.e., it must be "an 'obvious' defect in the * * *

proceedings." Id., quoting State v. Sanders, 92 Ohio St.3d 245, 257 (2001), in turn citing

State v. Keith, 79 Ohio St.3d 514, 518 (1997). Third, the error must have affected

"substantial rights," that is, the error must have affected the outcome of the trial. Id. An

appellate court will take notice of plain error with "utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice." State v. Baldev, 12th

Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12.

2. Analysis of Claim for Limiting Instruction

{¶ 76} During direct examination defense counsel asked Fidelis if he caused

Theresa physical injury. Fidelis responded with an elaboration, stating that he and Theresa

had been together almost 11 years and that, "I don't beat women. I don't push. I don't – I'm

cautious of these signs. I know the consequences."

{¶ 77} Prior to the state's cross-examination of Fidelis, the prosecutor asked for a

sidebar and asked the court for a ruling on whether she could question Fidelis about a prior

allegation of domestic violence based on the theory that Fidelis' statement that, "I don't beat

women" had opened the door to such questions. Referring to our prior case law, the trial

court determined that the state could cross-examine concerning prior allegations but would

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not be permitted to introduce extrinsic evidence if Fidelis denied the allegations.

{¶ 78} During cross-examination, the prosecutor questioned Fidelis concerning his

statement that "I don't beat women" and asked whether an ex-spouse had accused him of

domestic violence. He acknowledged the accusation and stated that the ex-spouse had

accused him of cutting her ponytail. He did not recall whether the ex-spouse had accused

him of holding her down. Fidelis characterized the prior incident as, "I called the police.

She called the police too. We both were arrested, and at the end of the day, the case was

dismissed." The state moved on without attempting to introduce extrinsic evidence of the

alleged offense and without attempting to rebut Fidelis' denials of the allegations.

{¶ 79} In State v. Eldridge, 12th Dist. Brown No. CA2002-10-021, 2003-Ohio-7002,

we held that the prosecution may not initiate questioning to establish a criminal defendant's

propensity for violence in a trial for a violent offense. Id. at ¶ 41, citing Evid.R. 404(A). But

we noted that a defendant is permitted to introduce testimony of a relevant character trait

that would tend to prove he acted in conformity with that trait on a particular occasion. Id.

citing Evid.R. 404(A)(1).

{¶ 80} If, however, the defendant introduces such evidence, it "opens the door" for

the prosecution to rebut or impeach this character evidence on cross-examination. Id. at ¶

42, citing Evid.R. 405(A). Such cross-examination may include inquiry into specific

instances of conduct, including relevant prior criminal convictions. Id. at ¶ 42-43.

{¶ 81} Pursuant to Eldridge, we conclude that the trial court correctly permitted the

state to attempt to rebut Fidelis' statement during his direct testimony that he does not "beat

women" with inquiry into a specific instance of conduct. While Fidelis did not deny the

accusation, he denied any improper behavior on his part.

{¶ 82} Upon review and consideration, we do not find plain error based on the trial

court's failure to inform jurors that they could only consider the state's questioning for the

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limited purpose of rebutting Fidelis' testimony concerning his character.

{¶ 83} Initially, we find no "obvious" defect or deviation from a legal rule. Our case

law established that by offering character evidence, Fidelis opened the door to the state's

questioning. Fidelis cites no authority for the proposition that once a defendant opens the

door to such questioning, the law imposes a legal duty upon a trial court to provide a limiting

instruction to jurors. Moreover, there was an obvious reason that the court may not have

chosen to offer such an instruction in the absence of a request from the defense. Defense

counsel may not have wanted to highlight this questioning by directing the jury's attention

to it through a limiting instruction.

{¶ 84} And even if we assumed that the court erred by failing to provide a limiting

instruction, we would still not be able to say that the outcome of the trial would have been

different given the facts of this case. Fidelis denied Theresa's version of events entirely.

He claimed that the only physical contact he had with Theresa was touching her thigh.

However, Theresa's testimony controverted Fidelis' testimony. Additionally, Fidelis'

statements to his sister the day after the incident (stating he only "grabbed her breast and

that was it") and the DNA evidence recovered from Theresa's nipple swab further undercut

his "no-offense-occurred" version of events. And Theresa produced multiple witnesses who

corroborated her claims insofar as the information she provided to them shortly following

the incident was consistent with her trial testimony.

{¶ 85} Given that the jury accepted Theresa's claims that Fidelis restrained and

physically harmed her and rejected Fidelis' inconsistent version of events on those matters,

we do not think that the prosecutor's line of questioning regarding his ex-wife's accusation

and Fidelis' response had any impact on the outcome. Thus, we do not find that the court

violated Fidelis' substantial rights.

{¶ 86} Finally, we note that Fidelis extensively cites State v. Hartman, 161 Ohio St.3d

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214, 2020-Ohio-4440, in support of his argument that the court here should have

considered a limiting instruction. In Hartman, the Ohio Supreme Court examined Evid.R.

404(B) and the types of evidence admissible and not admissible under that rule of

procedure. Hartman dealt with direct testimony during the state's case in chief concerning

other criminal acts committed by the defendant. Id. at ¶ 12. Here, however, Evid.R.

405(A)(1) expressly permitted the prosecutor's questions after Fidelis opened the door. We

find Hartman distinguishable from the case at hand. We overrule Fidelis' third assignment

of error.

D. Assignment of Error No. 5:

{¶ 87} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 88} Fidelis contends that his trial counsel provided constitutionally defective

performance by failing to request a jury instruction on the (C)(1) subsection of the

kidnapping statute, and on the offenses of abduction and unlawful restraint.

{¶ 89} To prevail on an ineffective assistance of counsel claim, Fidelis must show

his defense counsel's performance was deficient, and that he was prejudiced as a result.

State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Defense counsel's performance

will not be deemed deficient unless it fell below an objective standard of reasonableness.

Strickland at 688. To show prejudice, Fidelis must establish that, but for his trial counsel's

errors, there is a reasonable probability that the result of his trial would have been different.

Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. We strongly presume that defense counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019,

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2014-Ohio-4625, ¶ 7. It is "all too tempting" to "second-guess counsel's assistance after

conviction or adverse sentence * * *." Strickland at 689.

2. Analysis of Alleged Failure to Request Instructions

{¶ 90} R.C. 2905.01(C)(1) concerns the "safe-place-unharmed" instruction. That

section provides in relevant part,

kidnapping is a felony of the first degree * * * if an offender who violates division (A)(1) to (5) * * * releases the victim in a safe place unharmed, kidnapping is a felony of the second degree.

{¶ 91} Fidelis argues that the facts of the case merited a safe-place-unharmed

instruction and the failure to request it constituted ineffective assistance of counsel. With

respect to harm, he points to his testimony that he merely touched Theresa's thigh and

notes that the photograph of Theresa's shoulder depicted no visible injuries. Accordingly,

Fidelis contends the jury could have found from the evidence that he released Theresa in a

safe place unharmed, which would have resulted in a conviction for a second-degree felony

rather than a first-degree felony.

{¶ 92} However, the Ohio Supreme Court had held that an attorney who does not

request a safe-place-unharmed instruction provides effective assistance where a safe-

place-unharmed instruction could undermine a reasonable, "no-offense-occurred" trial

strategy. State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, ¶ 28. In Mohamed, the

state charged Mohamed, a cab driver, with kidnapping and sexual offenses after the woman

Mohamed was transporting in his taxicab accused him of failing to stop the taxicab when

she asked him to stop and then sexually assaulting her inside the taxicab. Id. at ¶ 6, 9.

Once the taxicab arrived at the woman's intended destination, she immediately left the

taxicab and sought help. Id. at ¶ 7.

{¶ 93} Mohamad's counsel's strategy at trial was that the woman's accusations were

"one big lie." Id. at ¶ 8. Accordingly, throughout trial, defense counsel attempted to

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undermine the woman's credibility. Id. Defense counsel did not request a safe-place-

unharmed instruction under R.C. 2905.01(C)(1). The jury convicted the defendant of first-

degree felony kidnapping. Id. at ¶ 9, 10.

{¶ 94} The Ohio Supreme Court examined whether Mohamed had demonstrated

that his counsel provided defective performance by failing to request the safe-place-

unharmed instruction under R.C. 2905.01(C)(1). The court observed that a defendant must

overcome a "strong presumption" that counsel's decisions are part of a sound trial strategy

and that even "tactical error" and "questionable" trial strategies do not rise to the level of

ineffective assistance. Id. at ¶ 18-19. Simply because there was "another and better

strategy available" also did not constitute defective assistance. Id. at ¶ 19, citing State v.

Clayton, 62 Ohio St.2d 45, 49 (1980).

{¶ 95} Applying this legal standard, the supreme court found that defense counsel

had a simple trial strategy: "completely deny that any kidnapping or sexual assault occurred

* * *." Id. at ¶ 20. Counsel reinforced this strategy in closing, attacking the alleged victim's

credibility and calling her story "preposterous." Id. at ¶ 21. The Ohio Supreme Court found

that given the chosen trial strategy, which it found reasonable, Mohamad's failure to request

a safe-place-unharmed instruction did not constitute defective performance. Id. at ¶ 22.

The court explained that counsel would have lost credibility with the jury by arguing that if

his client did kidnap the woman, he left her in a safe place unharmed. Id.

{¶ 96} Here too, Fidelis' defense theory was simple. Theresa's claims were all "one

big lie." He denied all accusations of any physical or sexual assault, and only claimed to

have briefly tapped her thigh.

{¶ 97} This was a case where there were no eyewitnesses to what occurred other

than the alleged victim and the alleged perpetrator. Under such circumstances, the case

rested on the credibility of the witnesses and the corroborating evidence. Given Fidelis'

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testimony on the stand, defense counsel had little choice but to work with the "one big lie"

defense theory.

{¶ 98} Based upon the Ohio Supreme Court's precedent in Mohamed, we find that a

"safe-place-unharmed" argument by defense counsel could have undermined Fidelis'

credibility with the jurors. Accordingly, we find that Fidelis has not overcome the strong

presumption that his counsel's trial strategy was sound. Mohamed at ¶ 18.

3. Failure to Request Instruction on Abduction and Unlawful Restraint

{¶ 99} Fidelis next argues that his defense counsel provided constitutionally

defective performance by failing to request that the court instruct the jury on the lesser-

included offenses of abduction and unlawful restraint.

{¶ 100} The jury convicted Fidelis of kidnapping under R.C. 2905.01(A)(4), which

provides that, "No person, by force, threat, or deception * * * shall * * * restrain the liberty of

the other person, for any of the following purposes: * * * To engage in sexual activity, as

defined in section 2907.01 of the Revised Code, with the victim against the victim's will * *

*." Abduction, in violation of R.C. 2905.02(A)(2), provides that "No person, without privilege

to do so, shall * * * 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 * * *." Unlawful restraint, in violation of R.C. 2905.03(A), provides that "No person,

without privilege to do so, shall knowingly restrain another of the other person's liberty."

{¶ 101} The law only requires a trial court to provide an instruction on a lesser-

included offense where the evidence presented at trial would reasonably support both an

acquittal on the charged offense and a conviction on the lesser included offense. State v.

Tolle, 12th Dist. Clermont No. CA2014-06-042, 2015-Ohio-1414, ¶ 11. In his appellate

brief, Fidelis does not clearly articulate how the evidence presented at trial would have led

to both an acquittal on kidnapping and a conviction of either of the two lesser offenses. He

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briefly states that deception is a potential element under kidnapping and there was "no

factual evidence that Appellant restrained his wife by deception." Fidelis' argument appears

to suggest that because deception was not a means by which he was accused of restraining

Theresa's liberty, then the trial court could not have convicted him of kidnapping. But as

the statute provides, deception is only one potential means of demonstrating the offense.

R.C. 2905.01(A). The statute also contemplates a defendant restraining a victim's liberty

by "force" or "threat." Id. There was, of course, evidence submitted that Fidelis restrained

Theresa by force. Therefore, the lack of any evidence of deception would not necessarily

have supported an acquittal on the kidnapping charge. As Fidelis fails to clearly articulate

his lesser-included offense argument beyond the deception issue, we decline to craft an

argument for him. App.R. 16(A)(7) (requiring an appellant's brief to contain "the contentions

of the appellant with respect to each assignment of error presented for review and the

reasons in support of the contentions* * *"). As such, we find that, the decision not to

request an instruction on abduction or unlawful restraint could not have constituted deficient

performance.

{¶ 102} We overrule Fidelis' fifth assignment of error.

E. Assignment of Error No. 4:

{¶ 103} THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON

THE INFERIOR DEGREE OF THE INDICTED OFFENSE CONSISTENT WITH O.R.C.

§2905.01(C).

{¶ 104} Fidelis argues that the court erred in failing to instruct jurors on the safe-

placed-unharmed provisions of R.C. 2905.01(C)(1). As set forth previously, Fidelis did not

request an instruction under R.C. 2905.01(C)(1) and did not otherwise object to the jury

instructions provided by the court. As such, he must demonstrate plain error. Evick, 2019-

Ohio-2791 at ¶ 24. Fidelis does not argue plain error in his appellate brief. And it is not our

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duty to construct a plain error argument on his behalf. State v. Schneider, 4th Dist. Athens

No. 19CA1, 2021-Ohio-653, ¶ 47 (noting that the appellant did not suggest a plain error

analysis and that it is not the appellate court's duty to construct an argument not presented),

citing State v. Steers, 4th Dist. Washington No. 11CA33, 2013-Ohio-3266, ¶ 20. Accord

State v. Brown, 9th Dist. Lorain Nos. 20CA011646, 20CA011649, 2021-Ohio-2161, ¶ 15

(declining to construct a plain-error argument on the appellant's behalf). For this reason

alone, Fidelis' fourth assignment of error lacks merit and should be overruled.

{¶ 105} In any event, no plain error occurred here. Based upon our analysis of the

fifth assignment of error, we do not find that Fidelis has identified any error, much less plain

error, in the failure of the trial court to instruct the jurors on the safe-place-unharmed

provision of R.C. 2905.01(C)(1). As we described above, Fidelis' defense was premised

upon the "one big lie" theory of the case. A "safe-place-unharmed" argument by defense

counsel could have undermined Fidelis' credibility with the jurors. Moreover, in Mohamed,

the Ohio Supreme Court explained that,

Having determined that counsel's decision not to request an instruction on the safe-place-unharmed defense falls within a reasonable trial strategy, we will not find that the trial judge committed plain error in failing to provide the unrequested instruction.

Id. at ¶ 28. Fidelis has failed to show that the trial court's alleged failure to give the jury the

instruction was obvious error, that it deviated from clear legal rules, or that it affected the

outcome of the trial.

{¶ 106} We overrule Fidelis' fourth assignment of error.

III. Conclusion

{¶ 107} For the foregoing reasons, we find that Fidelis has not established that the

state violated his equal protection rights in its use of its peremptory challenges. The state

demonstrated Fidelis' kidnapping conviction was supported by sufficient evidence and the

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greater weight of the evidence. The court did not plainly err in failing to provide a limiting

instruction concerning the state's character rebuttal evidence. Counsel was not ineffective

for failing to request a safe-place-unharmed kidnapping instruction. The court did not plainly

err in failing to instruct the jurors on the same instruction.

{¶ 108} Judgment affirmed.

PIPER, P.J., and HENDRICKSON, J., concur.

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