[Cite as State v. Spells,
2024-Ohio-6052.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 30055
:
v. : Trial Court Case No. 2022 CR 03678
:
RONALD T. SPELLS : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on December 27, 2024
...........
DAVID R. MILES, Attorney for Appellant
MATHIAS H. HECK, JR., by NATHAN B. VANDERHORST, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Ronald T. Spells appeals from his convictions for rape, aggravated burglary,
and attempted rape. He argues that his conviction for aggravated burglary was not
supported by sufficient evidence and that all three of his convictions were against the
manifest weight of the evidence. Spells also challenges the trial court’s suppression and
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sentencing decisions. For the reasons outlined below, we will affirm the judgment of the
trial court. However, we instruct the court to issue a nunc pro tunc judgment entry that
includes its findings with respect to the imposition of consecutive sentences.
I. Background Facts and Procedural History
{¶ 2} On September 15, 2022, T.C. went to Cincinnati with her friends Megan and
Kyle to watch another friend, Shawn, perform disc jockey services at a country club. T.C.
and Megan lived in Kettering at the time. Shawn drove T.C., Megan, and Kyle to Cincinnati
for the show; T.C., Megan, and Kyle took an Uber back to Megan’s apartment after the
show, between midnight and 1 a.m. Because it was late, T.C. and Kyle decided to sleep
over at Megan’s apartment. T.C. and Megan shared a bed in an upstairs bedroom, and
Kyle slept downstairs on the couch.
{¶ 3} In the middle of the night, T.C. awoke to a cold touch sensation on her legs.
She opened her eyes and saw a man standing over her and pointing a gun at her face.
The man was wearing a black mask, t-shirt, jeans, and multicolored tennis shoes, and he
was attempting to pull down her pants. T.C. slid out of the bed, and the man pulled down
his pants, exposed his genitals, and pointed at the ground. T.C. held up her hands in a
“don’t shoot motion,” started shaking and crying, and kneeled on the ground in
compliance with the man’s directions.
{¶ 4} When T.C. was face down on the ground, the man pulled down her pants.
He attempted to insert his penis into her rectum, but penetration was unsuccessful. He
then inserted his penis into her vagina and vaginally raped her. The man threatened to
kill her and her friends if she did not remain silent. Megan remained asleep and unaware
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of the unfolding situation.
{¶ 5} After the man raped T.C. for five to six minutes, he stopped, stood up, and
motioned for T.C. to pull up her pants. He then gestured to T.C. to go out to the hallway
and pointed down the stairs. He slowly walked T.C. down the stairs while holding the gun
to her back and reminding her to be quiet or he would shoot everyone in the house. Kyle
remained asleep on the couch.
{¶ 6} When they reached the bottom of the stairs, T.C. walked past the living room
and toward the kitchen, where she noticed that the sliding glass back door was open. T.C.
had not seen the man enter the apartment, did not see any other open windows or doors,
and had not heard any doors open during the night. The man then left through the open
glass door and ran west. T.C. immediately called 911, and the police were dispatched to
the apartment. A canine unit was called to the scene and tracked west. The police called
an ambulance for T.C., and she was transported to Sycamore Hospital in Miamisburg for
a Sexual Assault Nurse Examiner (SANE) examination, during which DNA samples were
collected from several areas of her body and clothing, including her underwear, vaginal
area, and buttocks.
{¶ 7} Detective Justin Knight was assigned to investigate T.C.’s reported rape. He
interviewed T.C. at Sycamore Hospital, where she described the perpetrator as a black
man wearing a black face mask, dark-colored jeans, and multicolored shoes. Detective
Knight collected the SANE kit from T.C.’s examination and sent it to the Bureau of
Criminal Investigation (BCI) for testing.
{¶ 8} Detective Knight was later contacted by Katherine Dailey from BCI, who
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advised him that a male DNA hit from the SANE kit was related to a Trotwood Police
Department burglary case. After speaking with Dailey, Detective Knight received a call
from Detective Jackson from Trotwood, who told Detective Knight that she had received
the same call from BCI concerning a DNA hit in their burglary case. Detective Jackson
said that their suspect was a man named Ronald Spells.
{¶ 9} The complainant in the Trotwood burglary case was Spells’s ex-girlfriend,
who told law enforcement officers that Spells had called her seven or more times an hour
before the burglary and that she believed Spells was the person who had broken into her
house. Detective Jackson told Detective Knight that Spells had a misdemeanor warrant
for his arrest in that case, that she had knowledge of where he was located, and that
officers from the Dayton Police Department would go to Spells’s location and arrest him
pursuant to the warrant.
{¶ 10} Because the DNA profile in the rape investigation matched the DNA profile
in the Trotwood burglary case, Detective Knight drafted a search warrant for Spells’s
DNA, which was granted. He then went to the Montgomery County Jail to interview
Spells after his arrest on the misdemeanor warrant. During the interview, Spells told
Detective Knight his place of residence, which was in the same apartment complex where
the rape had occurred (later determined to be approximately 500 feet away from Megan’s
apartment). Spells also admitted to being at home on the morning of the rape. At the
conclusion of the interview, Detective Knight executed the DNA search warrant with a
swab of Spells’s cheek. Spells’s DNA swab was sent to BCI for comparison with the
results from the SANE kit, and BCI later determined that the DNA collected from the SANE
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kit was attributable to Spells.
{¶ 11} After learning that Spells lived in the same apartment complex where the
rape occurred, Detective Knight drafted a search warrant for Spells’s residence, which
was also granted. That search resulted in the recovery of a black face mask, black jeans,
and multicolored PUMA shoes.
{¶ 12} On January 13, 2023, Spells was indicted on one count of rape (by force or
threat of force) in violation of R.C. 2907.02(A)(2); one count of aggravated burglary (by
force) in violation of R.C. 2911.11(A)(1); and one count of attempted rape (by force) in
violation of R.C. 2907.02(A)(2) and R.C.2923.02. Spells entered not guilty pleas.
{¶ 13} Spells subsequently moved to suppress the evidence obtained during the
execution of the search warrants for the collection of his DNA and the search of his
residence. A hearing on Spells’s motion to suppress was held, and the trial court denied
his motion.
{¶ 14} The matter proceeded to jury trial on January 29, 2024. The jury found
Spells guilty on all three counts. At Spells’s sentencing hearing, he argued that the trial
court should merge the offenses and that his sentences should not run consecutively.
The trial court disagreed with Spells; it determined that the three counts did not merge
and imposed consecutive sentences, for an aggregate prison term of 30 to 35.5 years.
{¶ 15} Spells appeals.
II. Assignments of Error
{¶ 16} On appeal, Spells asserts the following six assignments of error:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
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MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH
WARRANT FOR COLLECTION OF APPELLANT’S DNA.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF
APPELLANT’S RESIDENCE.
APPELLANT’S CONVICTION OF AGGRAVATED BURGLARY IS
BASED UPON INSUFFICIENT EVIDENCE.
APPELLANT’S CONVICTIONS FOR RAPE, AGGRAVATED
BURGLARY, AND ATTEMPTED RAPE ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
THE TRIAL COURT ERRED IN NOT MERGING THE OFFENSES
OF RAPE AND ATTEMPTED RAPE WITH AGGRAVATED BURGLARY.
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES.
{¶ 17} In his first and second assignments of error, Spells argues that the trial court
erred in denying his motion to suppress the evidence obtained from his DNA swab and
from the search of his residence. Spells contends that the unrelated burglary case in
Trotwood could not serve as the basis for the search warrants in this case and that the
affidavits accompanying the search warrants did not establish probable cause. We
disagree.
{¶ 18} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution provide that search warrants may only be issued upon
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probable cause, supported by oath or affirmation, particularly describing the place to be
searched, and the persons or things to be seized. State v. Jones, 2015-Ohio-483, ¶ 11-
12. “The Supreme Court of the United States has provided that in determining whether a
search warrant was issued upon a proper showing of probable cause, reviewing courts
must examine the totality of the circumstances.” Id. at ¶ 13, citing Illinois v. Gates,
462
U.S. 213, 238 (1983). The duty of a reviewing court is simply to ensure that the trial court
had a “ ‘substantial basis for . . . conclud[ing]’ that probable cause existed.”
Id., citing
Gates at 238-239, quoting Jones v. United States,
362 U.S. 257, 271 (1960), overruled
on other grounds, United States v. Salvucci,
448 U.S. 83 (1980).
{¶ 19} In conducting after-the-fact scrutiny of an affidavit submitted in support of a
search warrant, appellate courts should accord great deference to the trial court’s
determination of probable cause, and “doubtful or marginal cases in this area should be
resolved in favor of upholding the warrant.” Id. at ¶ 14, citing State v. George, 45 Ohio
St.3d 325 (1989), paragraph two of the syllabus. “[A] probable cause determination must
be limited to the four corners of the underlying affidavit.” State v. Eash,
2005-Ohio-3749,
¶ 17 (2d Dist.), citing State v. Klosterman,
114 Ohio App.3d 327, 332 (2d Dist.1996).
{¶ 20} At a suppression hearing, the trial court serves as the trier of fact and judges
the credibility of the witnesses and the weight of the evidence. State v. Hurt, 2006-Ohio-
990, ¶ 16, citing State v. Piggott, 2002-Ohio-3810, ¶ 30 (2d Dist.). “In reviewing a trial
court’s decision on a motion to suppress, an appellate court accepts the trial court’s
factual findings, relies on the trial court’s ability to assess the credibility of witnesses, and
independently determines whether the trial court applied the proper legal standard to the
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facts as found.” Id., citing State v. Baker,
118 Ohio App.3d 654, 658 (12th Dist. 1997),
citing State v. Anderson,
100 Ohio App.3d 688, 691 (4th Dist. 1995). “An appellate court
is bound to accept the trial court’s factual findings as long as they are supported by
competent, credible evidence.”
Id., citing State v. Armstrong,
103 Ohio App.3d 416, 420
(9th Dist.1995).
{¶ 21} Prior to the suppression hearing, defense counsel asserted a right to a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and claimed a denial of
Spells’s Fourth Amendment rights.
{¶ 22} At the suppression hearing in this case, Detective Knight testified regarding
his interview with T.C. and the SANE kit collected from T.C., which was sent to BCI for
testing. Detective Knight testified that, after the SANE kit was evaluated by BCI, Katherine
Dailey from BCI advised him that there was a male DNA hit on the SANE kit and that the
hit was related to a Trotwood burglary case. After speaking to Dailey, Detective Knight
received a call from Detective Jackson from the Trotwood Police Department, who also
confirmed that she had a DNA hit on the Trotwood burglary case, identifying the suspect
in the burglary case as Spells.
{¶ 23} During the hearing, defense counsel pointed out that Spells had been
identified as a potential suspect in the Trotwood burglary case by the complainant (Spell’s
ex-girlfriend), and that Spells’s DNA had been obtained from a cigarette butt collected
from the complainant’s home. Defense counsel asserted, however, that, at the time the
DNA from the cigarette butt was analyzed, no suspect name had yet been confirmed, and
Spells was only linked to the burglary because the complainant believed that he could
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have been the suspect.
{¶ 24} Defense counsel complained that Detective Knight’s search warrant
affidavit did not indicate that no suspect name had been confirmed at that time; he simply
listed Spells’s name as a suspect. Defense counsel contended that the DNA hit from the
Trotwood burglary case was a hit that merely came back as an unidentified male (an
unknown DNA contributor); thus, the DNA from the burglary case was not, in fact,
matched to Spells, as suggested by Detective Knight. In so arguing, defense counsel
asserted that Detective Knight had omitted significant details from the search warrant
affidavit regarding the identification of Spells and that the information provided was
misleading, because it read as though Spells was a confirmed suspect in the Trotwood
burglary case based on the DNA hit from the cigarette butt.
{¶ 25} At the conclusion of the suppression hearing, the trial court found that Spells
had failed to make a substantial preliminary showing that (1) a false statement or omission
necessary to a finding of probable cause had been knowingly, intentionally, or recklessly
included in or omitted from the affidavit and (2) the affiant, Detective Knight, with an intent
to mislead, either excluded crucial information from the affidavit or provided false or
misleading information in the affidavit. Thus, the court concluded that Spells was not
entitled to a Franks hearing.
{¶ 26} Thereafter, the trial court issued a written decision overruling Spells’s
motion to suppress and his request for a Franks hearing. It found that the search
warrants for Spells’s DNA and residence and their accompanying affidavits had been
sufficiently specific and that the warrants had been based on probable cause, describing
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in detail the properties, items, and places to be searched and stating with particularity the
items to be seized.
{¶ 27} Considering the totality of the circumstances, we conclude that the trial court
had a substantial basis for finding that probable cause had existed for the search
warrants.
{¶ 28} First, whether Spells had been charged or convicted in the Trotwood
burglary case was not the sole basis in the affidavit for probable cause supporting the
search warrant for Spells’s DNA; the burglary was only one factor mentioned in the
affidavit. The affidavit in support of the search warrant for Spells’s DNA also stated that
Detective Knight had been advised by Dailey at BCI that a DNA hit had been obtained
from T.C.’s SANE kit and that it matched the DNA from a Trotwood burglary case.
Detective Knight had also spoken to Trotwood Police Detective Jackson, who confirmed
the DNA hit in the burglary case and the suspect as Spells. Detective Knight specifically
sought to collect a sample of Spells’s DNA and asserted that obtaining a DNA standard
from Spells would assist in comparing the DNA profile that was collected in the SANE kit,
thus including or excluding Spells as a DNA contributor. Detective Knight was not required
to state in his affidavit that Spells initially became a suspect in the Trotwood burglary case
because his ex-girlfriend had identified him as a possible suspect.
{¶ 29} Similarly, we believe that the issuing judge reasonably concluded that
probable cause existed for the issuance of a search warrant for Spells’s residence. In his
affidavit to support the search warrant for Spells’s residence, Detective Knight stated that
Spells had admitted to living in the apartment complex where the rape occurred and to
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being at his apartment on the morning of the rape. Detective Knight also noted that T.C.
had reported that the perpetrator ran west upon leaving Megan’s apartment, which was
in the direction of Spells’s residence, and that the canine unit had also tracked west very
near to Spells’s apartment. Detective Knight requested to search Spells’s residence and
to seize certain items potentially associated with the rape or described by T.C., including
clothing, a cell phone, weapons and ammunition, illegal narcotics, safes and lock boxes,
and any video surveillance footage. Although Spells contends that references within the
affidavits to a burglary in another jurisdiction were improper, the references to the burglary
in Trotwood were appropriate, because Detectives Knight and Jackson had received
confirmation from BCI that their respective DNA samples matched, and Detective
Jackson had informed Knight that Spells had been identified as the primary suspect in
the Trotwood burglary case.
{¶ 30} We must accord great deference to a determination of probable cause, and
we reiterate that doubtful or marginal cases should be resolved in favor of upholding a
warrant. The search warrants in this case were based on probable cause. Thus, we
cannot say that the trial court erred in overruling Spells’s motion to suppress the evidence
obtained pursuant to the search warrants. Spells’s first and second assignments of error
are overruled.
{¶ 31} In his third and fourth assignments of error, Spells contends that his
conviction for aggravated burglary was based on insufficient evidence and that his
convictions for rape, aggravated burglary, and attempted rape were against the manifest
weight of the evidence. He specifically argues that there was insufficient evidence
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demonstrating the element of force, stealth, or deception to trespass, which is necessary
for an aggravated burglary conviction, because there was no evidence as to how Spells
gained entry to the apartment, and any evidence presented was speculative. He also
contends that the rape incident, as described by T.C., was not plausible because it
allegedly occurred without waking the other apartment occupants. We disagree.
{¶ 32} A sufficiency of the evidence argument relates to whether the State
“presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10
(2d Dist.), citing State v. Thompkins,
78 Ohio St.3d 380 (1997). The test for sufficiency of
the evidence was set forth in State v. Jenks,
61 Ohio St.3d 259 (1991):
An appellate court’s function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. 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. at paragraph two of the syllabus. In other words, on review for sufficiency, courts are
to assess not whether the State’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.
Thompkins at 390.
{¶ 33} “In reviewing sufficiency-of-the-evidence claims, courts must remain
mindful that the elements of an offense may be established by direct evidence,
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circumstantial evidence, or both.” State v. Crossley, 2016-Ohio-3196, ¶ 16, citing Michalic
v. Cleveland Tankers, Inc.,
364 U.S. 325, 330 (1960). “Circumstantial and direct evidence
are of equal evidentiary value.”
Id., citing State v.
Jenks at 272 (“Circumstantial evidence
and direct evidence inherently possess the same probative value. In some instances
certain facts can only be established by circumstantial evidence.”). When reviewing the
value of circumstantial evidence, “the weight accorded an inference is fact-dependent and
can be disregarded as speculative only if reasonable minds can come to the conclusion
that the inference is not supported by the evidence.”
Id., quoting Donaldson v. N. Trading
Co.,
82 Ohio App.3d 476, 483 (10th Dist. 1992).
{¶ 34} A weight of the evidence argument, on the other hand, challenges the
believability of the evidence and asks which of the competing inferences suggested by
the evidence is more believable or persuasive. Wilson at ¶ 12, citing State v. Hufnagel,
1996 WL 501470, *3 (Sept. 6, 1996). The proper test to apply to a manifest weight of the
evidence inquiry is set forth in State v. Martin,
20 Ohio App.3d 172, 175 (1983), which
states:
. . . [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 lost its
way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. . . .
“In order to find that a manifest miscarriage of justice occurred, an appellate court must
conclude that a guilty verdict is ‘against,’ that is, contrary to, the manifest weight of the
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evidence presented.” (Citation omitted.) Wilson at ¶ 14.
{¶ 35} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” State v. Flores-Lopez, 2017-Ohio-690, ¶ 49 (2d Dist.), citing State
v. McCrary,
2011-Ohio-3161, ¶ 11 (10th Dist.); accord State v. Robinson, 2015-Ohio-
1167, ¶ 17 (2d Dist.).
{¶ 36} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of fact primarily to resolve. Wilson at ¶ 15, citing State v. DeHass,
10 Ohio St.2d 230 (1967). In State v. Lawson,
1997 WL 476684, *4 (2d Dist. Aug. 22,
1997), we explained:
Because the factfinder . . . has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of
appeals to find that a judgment is against the manifest weight of the
evidence requires that substantial deference be extended to the factfinder’s
determinations of credibility. The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness.
{¶ 37} Additionally, the trier of fact is in the best position to consider
inconsistencies, along with the witnesses’ manner and demeanor, and determine whether
the witnesses’ testimony is credible. State v. Petty, 2012-Ohio-2989, ¶ 38 (10th Dist.),
citing State v. Williams,
2002-Ohio-4503, ¶ 58 (10th Dist.). “To that end, the fact finder is
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free to believe all, part or none of the testimony of each witness appearing before it.” Id.,
citing State v. Raver,
2003-Ohio-958, ¶ 21 (10th Dist.). “Mere disagreement over the
credibility of witnesses is not sufficient reason to reverse a judgment.”
Id., citing State v.
Wilson,
2007-Ohio-2202, ¶ 24. Moreover, “[i]t is well-established that when conflicting
evidence is presented at trial, a conviction is not against the manifest weight of the
evidence simply because the trier of fact believed the prosecution testimony.” In re M.J.C.,
2015-Ohio-820, ¶ 35 (12th Dist.). Thus, we will not substitute our judgment for that of the
trier of fact on the issue of witness credibility unless it is patently apparent that the trier of
fact lost its way in arriving at its verdict. See Wilson at ¶ 17.
{¶ 38} With respect to the third assignment of error, Spells was convicted of
aggravated burglary under R.C. 2911.11(A)(1). A person commits aggravated burglary
when he uses force, stealth, or deception to trespass in an occupied structure when
another person other than an accomplice of the offender is present, and the offender
inflicts or attempts or threatens to inflict physical harm on another. R.C. 2911.11(A)(1). A
trespass occurs when an offender knowingly enters or remains on the premises of
another without privilege to do so. R.C. 2911.21(A)(1). “Privilege” means an immunity,
license, or right conferred by law, bestowed by express or implied grant, arising out of
status, position, office, or relationship, or growing out of necessity. R.C. 2901.01(A)(12).
{¶ 39} “The methods of trespass in the aggravated burglary statute—force, stealth,
or deception—are written in the disjunctive, therefore the state only needed to prove one
of the three methods.” State v. Kirby, 2020-Ohio-4005, ¶ 30 (12th Dist.), citing State v.
Shepherd,
2017-Ohio-328, ¶ 17 (12th Dist.), citing State v. Bell,
1994 WL 29877, *6 (Jan.
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31, 1994). “Force” means any violence, compulsion, or constraint physically exerted by
any means upon or against a person or thing. R.C. 2901.01(A)(1). “Force” is satisfied by
“any effort physically exerted.” State v. Johnson, 2017-Ohio-5498, ¶ 21 (2d Dist.), citing
State v. Snyder,
2011-Ohio-175, ¶ 18 (9th Dist.). In Ohio, courts have observed that force
is used when a person opens an unlocked screen door to trespass into a home. See State
v. Albertson,
2021-Ohio-2125, ¶ 74 (2d Dist.) (“For example, opening an unlocked screen
door and walking through an open interior door is sufficient to establish entry by force.”),
citing State v. Cantrell,
2016-Ohio-7623, ¶ 12 (2d Dist.); see also State v. McWilliams,
2001 WL 1203395, *3 (2d Dist. Oct. 12, 2001) (“In Ohio, opening a closed but unlocked
door amounts to sufficient force to prove the element of force in the offense of Burglary”);
State v. Ford,
1996 WL 257442, *2 (2d Dist. May 17, 1996) (“[t]he effort necessary to
open a door, locked or unlocked, is sufficient to satisfy the element of ‘force’ necessary
to prove burglary”). “ ‘Stealth’ has been defined as “ ‘any secret, sly or clandestine act to
avoid discovery and to gain entrance into or to remain within a residence of another
without permission.’ ” State v. Butler,
2011-Ohio-1233, ¶ 23 (8th Dist.), citing State v.
Sims,
2005-Ohio-1978, ¶ 5 (8th Dist.), quoting State v. Ward,
85 Ohio App.3d 537, 540
(3d Dist.1993).
{¶ 40} In this case, T.C. testified that she saw that the sliding glass back door was
open when she came down the stairs with Spells and that Spells left the apartment
through the same door. The act of opening an unlocked closed door to trespass into a
home is sufficient to establish entry by force, and the jury was permitted to infer that Spells
had entered the apartment that way. Additionally, T.C. testified that she did not see Spells
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enter the apartment and that no one in the house let Spells in; as such, the jury was
permitted to infer that Spells was stealthy and entered the apartment without permission.
Moreover, even if Spells had had permission to enter (of which there was no evidence),
the jury was permitted to infer that his act of possessing and pointing a gun at T.C. was
performed with force and that committing a crime with a gun was sufficient to revoke
permission and support an aggravated burglary conviction. Although Spells contends that
this evidence was speculative, circumstantial evidence is given the same weight as direct
evidence, and an inference can be “disregarded as speculative only if reasonable minds
can come to the conclusion that the inference is not supported by the evidence.”
{¶ 41} Based on these facts, we cannot say that inferences regarding Spells’s
entry into the apartment by way of force or stealth were not supported by the evidence. A
rational trier of fact could have found that the State presented evidence beyond a
reasonable doubt that established Spells had committed the essential elements of
aggravated burglary. Accordingly, Spells’s third assignment of error is overruled.
{¶ 42} In his fourth assignment of error, Spells contends that all three of his
convictions were against the manifest weight of the evidence. In addition to his conviction
for aggravated burglary, Spells was convicted of the rape (vaginal) of T.C. by force or
threat of force under R.C. 2907.02(A)(2), which states:
No person shall engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.
Spells was also convicted of the attempted rape (anal) of T.C. under R.C. 2907.02(A)(2)
and R.C. 2923.02.
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{¶ 43} At the outset, we note that a rape conviction may be based solely on the
victim’s testimony, and physical evidence is not required to support a conviction for rape
against a manifest weight challenge. See State v. Thomas, 2018-Ohio-4345, ¶ 25 (2d
Dist.).
{¶ 44} At trial, T.C. testified that, after gaining entry to Megan’s apartment without
permission and threatening to kill her, Spells attempted to anally rape her and
successfully vaginally raped her while pointing a gun at her. T.C. notified the police of the
incident and was transported to the hospital, where she underwent a SANE examination.
During the examination, T.C.’s underwear, vaginal area, and buttocks were swabbed for
potential DNA, and the swabbed samples were sent to BCI for analysis. Dailey from BCI
testified that she was able to determine that DNA attributed to Spells was present in the
collected samples. Spells did not testify.
{¶ 45} “The jury was free to believe, or disbelieve, any part of the witnesses’
testimony, and a conviction is not against the manifest weight of the evidence merely
because the jury believed the prosecution’s testimony.” (Citation omitted.) State v. Arega,
2012-Ohio-5774, ¶ 30 (10th Dist.). Although Spells contends that T.C.’s description of the
incident was not plausible and the jury lost its way, the jury was permitted to find T.C.’s
testimony credible, and the credibility of her testimony was bolstered by the physical
evidence obtained during her SANE examination, which established that Spells’s DNA
was present.
{¶ 46} Considering the testimony in the record, we do not find that the jury clearly
lost its way and created a manifest miscarriage of justice by believing the testimony, as
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the jury was in the best position to weigh the witnesses’ credibility. For the foregoing
reasons, we do not find that Spells’s convictions for rape, aggravated burglary, and
attempted rape were against the manifest weight of the evidence. Spells’s fourth
assignment of error is overruled.
{¶ 47} In his fifth assignment of error, Spells contends that the trial court erred in
not merging his offenses.
{¶ 48} Under Ohio law, R.C. 2941.25 governs allied offenses of similar import and
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.
(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.
{¶ 49} R.C. 2941.25 focuses on the defendant’s conduct, and “at its heart, the
allied-offense analysis is dependent upon the facts of a case.” State v. Ruff, 2015-Ohio-
995, ¶ 26. The prosecution selects the charges that may be brought against a defendant
“based upon the criminal conduct of an accused,” and “that conduct may potentially
support convictions of multiple offenses.” Id. at ¶ 13. “When the defendant’s conduct
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constitutes a single offense, the defendant may be convicted and punished only for that
offense. When the conduct supports more than one offense, however, a court must
conduct an analysis of allied offenses of similar import to determine whether the offenses
merge or whether the defendant may be convicted of separate offenses.” Id. at ¶ 24, citing
R.C. 2941.25(B).
{¶ 50} Under R.C. 2941.25(A), “[i]f the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.” State v. Johnson, 2010-
Ohio-6314, ¶ 48, abrogated by Ruff at ¶ 48. “In determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors—the conduct, the animus, and the import.” Ruff at paragraph one of
syllabus. “Two or more offenses of dissimilar import exist within the meaning of R.C.
2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims
or if the harm that results from each offense is separate and identifiable.” Id. at paragraph
two of syllabus. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
were committed separately, or (3) the conduct shows that the offenses were committed
with separate animus.” Id. at paragraph three of the syllabus.
{¶ 51} Spells was convicted of rape (vaginal), aggravated burglary, and attempted
rape (anal). Spells contends that the aggravated burglary charge in the indictment
specifically stated that Spells did inflict or attempted to inflict physical harm on T.C. and
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that the same element constituted the same conduct for the rape and attempted rape
charges. Thus, Spells argues that the aggravated burglary and rape charges should have
merged. We disagree.
{¶ 52} With respect to Spells’s convictions for rape and attempted rape, “anal rape
and vaginal rape do not involve the same conduct.” State v. Coleman, 2015-Ohio-5381,
¶ 25 (2d Dist.), citing State v. Nesser,
2014-Ohio-1978, ¶ 63 (2d Dist.). Other courts have
also held that penetration of separate bodily orifices constitutes separate acts of rape.
Id.,
citing State v. Wilson,
8 Ohio App.3d 216 (8th Dist.1982); State v. Ludwick, 2004-Ohio-
1152 (11th Dist.). Such offenses cause separate identifiable harm. Thus, the trial court
did not err in not merging these offenses.
{¶ 53} Regarding Spells’s conviction for aggravated burglary, we previously
explained in State v. Turner, 2011-Ohio-6714, ¶ 24 (2d Dist.), that, “because one offense
was complete before the other offense occurred, the two offenses were committed
separately for purposes of R.C. 2941.25(B), notwithstanding their proximity in time and
that one was committed in order to commit the other.” In Turner, when the defendant,
armed with a shotgun, forced his way into an apartment intending to steal drugs and
money from the victim, we found that the aggravated burglary offense had been
completed when the defendant entered the apartment.
Id. Then, once inside, when the
defendant held the victim at gunpoint while demanding drugs and money and stealing a
television, a new, separate crime (aggravated robbery) arose, which was committed
separately from the completed aggravated burglary offense.
Id. (“Whether an intended
felony was committed is irrelevant to the burglary charge.) See Boyer v. Maxwell, 175
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Ohio St. 318, 319 (1963), for a similar analysis in the context of breaking and entering.
“But where the intended felony is actually committed, a new crime arises for which the
defendant may be convicted.” Turner at ¶ 22, quoting State v. Frazier,
58 Ohio St.2d 253
(1979).
{¶ 54} Like in Turner, the burglary, rape, and attempted rape in this case were
committed separately. When Spells forced the sliding door open with the intent to rape
T.C., held her at gunpoint, and threatened to kill her, the burglary was completed. Spells
had not yet committed the rape or attempted rape at that point. When Spells raped and
attempted to rape T.C. in the upstairs bedroom, he perpetrated two new crimes, which
were committed separately from the completed aggravated burglary offense. Accordingly,
we find that Spells’s offenses of aggravated burglary, rape, and attempted rape were
committed separately. The trial court did not err, because merger for purposes of
sentencing was not required. Spells’s fifth assignment of error is overruled.
{¶ 55} Finally, in his sixth assignment of error, Spells argues that the trial court
erred by imposing consecutive sentences. In response, the State asserts that the record
supported the imposition of consecutive sentences, and thus the trial court did not err in
ordering consecutive sentences. However, the State points out that the trial court did not
include its findings regarding consecutive sentences in its judgment entry, and it suggests
that the trial court may correct its mistake through a nunc pro tunc entry. We agree with
the State.
{¶ 56} A trial court may impose consecutive sentences under R.C. 2929.14(C)(4),
which provides:
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If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 57} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, but it has no obligation to state
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reasons to support its findings.” State v. Bonnell, 2014-Ohio-3177, ¶ 37. “A trial court’s
inadvertent failure to incorporate the statutory findings in the sentencing entry after
properly making those findings at the sentencing hearing does not render the sentence
contrary to law; rather, such a clerical mistake may be corrected by the court through a
nunc pro tunc entry to reflect what actually occurred in open court.” Id. at ¶ 30, citing State
v. Qualls,
2012-Ohio-1111, ¶ 15 (where notification of postrelease control was accurately
given at the sentencing hearing, an inadvertent failure to incorporate that notice into the
judgment entry may be corrected by a nunc pro tunc entry without a new sentencing
hearing).
{¶ 58} R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate
sentences if they find by clear and convincing evidence that the record does not support
the sentencing court’s findings under certain relevant statutes or if the sentence is
otherwise contrary to law. “Clear and convincing evidence is that measure or degree of
proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of
such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” State v. Marcum, 2016-Ohio-1002, ¶ 22, quoting Cross v. Ledford,
161
Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 59} In sentencing Spells to consecutive sentences under R.C. 2929.14(C)(4),
the trial court opined that not much was worse than a stranger rape where a man breaks
into someone’s house, forces a woman at gunpoint to have sex with him, threatens to kill
her and the others in the house if she makes any noise, and then orders her down the
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stairs at gunpoint before escaping out the back door. The court, authorized under R.C.
2929.14(C)(4) to impose consecutive sentences, found that consecutive sentences were
necessary in this case to protect the public from future crime, to punish Spells for his
conduct, and that consecutive sentences were not disproportionate to the seriousness of
the misconduct and the danger posed to the public.
{¶ 60} Our review of the record reveals that the facts amply supported the
sentences imposed by the trial court. We do not find by clear and convincing evidence
that the record does not support the trial court’s findings or that the sentences were
otherwise contrary to law. Therefore, we cannot say that the trial court erred in imposing
consecutive sentences, and Spells’s sixth assignment of error is overruled.
{¶ 61} Having overruled Spells’s assignments of error, the judgment of the trial
court is affirmed. However, the trial court did not include its findings regarding consecutive
sentences in its judgment entry. Therefore, we instruct the trial court to correct its mistake
through a nunc pro tunc entry.
.............
EPLEY, P.J. and WELBAUM, J., concur.
