State v. Lee

[Cite as State v. Lee, 190 Ohio App.3d 581, 2010-Ohio-5672.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY

THE STATE OF OHIO,

APPELLEE, CASE NO. 3-10-11

v.

LEE, OPINION

APPELLANT.

THE STATE OF OHIO,

APPELLEE, CASE NO. 3-10-12

v.

STALL, OPINION

APPELLANT.

THE STATE OF OHIO,

APPELLEE, CASE NO. 3-10-13

v.

WEESE, OPINION

APPELLANT.
Case No. 3-10-11, 3-10-12 and 3-10-13

Appeals from Crawford County Common Pleas Court
Trial Court Nos. 09-CR-0169, 09-CR-0170 and 09-CR-0179

Judgment Affirmed in Case No. 3-10-11
Judgment Affirmed in Case No. 3-10-13
Judgment Affirmed in Part, Reversed in Part and
Cause Remanded in Case No. 3-10-12

Date of Decision: November 22, 2010

APPEARANCES:

Clifford J. Murphy, Assistant Crawford County Prosecuting
Attorney, for appellee.

Geoffrey L. Stoll, for appellants.

PRESTON, Judge.

{¶ 1} Defendants-appellants, Robert Lee, Malcolm Stall, and Michael

Weese (collectively, “defendants”), appeal the Crawford County Court of

Common Pleas judgment denying their joint motion to merge offenses as allied

offenses of similar import. For the reasons that follow, we affirm the trial court’s

judgment as to case No. 3-10-13 (Weese), affirm the trial court’s judgment as to

case No. 3-10-11 (Lee), and affirm in part and reverse in part the trial court’s

judgment as to case No. 3-10-12 (Stall).

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{¶ 2} This case concerns a home invasion that took place on October 18,

2009, at a residence in Galion, Ohio that was owned by an elderly couple,

Kathleen and Sam Siclair. Specifically, at issue on this appeal is whether certain

offenses arising out of the home invasion should have been merged because the

offenses are allied offenses of similar import.

{¶ 3} The general facts of the case are stated as follows. Late in the

evening on October 18, 2009, defendants Lee, Weese, and Stall went to the

Siclairs’ home with the purpose of stealing from the home approximately $40,000

in cash, which the defendants believed was hidden in a freezer in the Siclairs’

basement. Defendants tried for approximately one hour to covertly gain entrance

into the home, but discovered that all of the doors and windows were locked.

During this time, Lee noticed that Mr. Siclair was asleep in one of the bedrooms,

while Mrs. Siclair was sitting on the floor in the living room seemingly watching

TV.

{¶ 4} Consequently, defendants decided to enter the residence by knocking

on the door and forcing their way into the home.

{¶ 5} At approximately 11:00 p.m., Weese went to the back door and

knocked on the door. Mrs. Siclair got up, went to answer the back door, and saw a

young man (Weese) with a coat covering his mouth. Weese informed Mrs. Siclair

that he had a question for her, at which point Weese pushed the door open with

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such force that it knocked Mrs. Siclair to the ground, causing her to hit her head on

the back of an end table and suffer a concussion. Additionally, Mrs. Siclair stated

that after she was pushed and hit her head on the end table, she was also punched

in the face, which resulted in a cut to her head that required seven stitches at the

hospital.

{¶ 6} Upon gaining entry in the house, Lee and Weese proceeded to search

the house for the $40,000 they believed was hidden in a freezer in the basement.

Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and

wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that

while searching the house, defendants repeatedly demanded that she disclose the

location of the money and drugs, and when she did not give them a location, she

was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she

had breathing due to the duct tape, the pain from being struck repeatedly, along

with the fact that she suffers from COPD (chronic obstructive pulmonary disease).

During the entire home invasion, Mr. Siclair was asleep in a different room, and

because of a severe hearing disability did not hear anything.

{¶ 7} Eventually, after cutting the telephone cords to the house, defendants

left the home and took with them jewelry and drugs that they had found inside the

Siclairs’ house. Subsequent to defendants’ departure, Mrs. Siclair crawled her

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way to where her husband was sleeping, woke him up, and used a cell phone to

call the police.

{¶ 8} On November 9, 2009, the Crawford County Grand Jury indicted all

three defendants with the following charges:1 aggravated burglary in violation of

R.C. 2911.11(A)(1), a felony of the first degree; aggravated robbery in violation of

R.C. 2911.01(A)(3), a felony of the first degree; and felonious assault in violation

of R.C. 2903.11(A)(1), a felony of the second degree. Stall was additionally

charged with kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first

degree. Lee was indicted in case No. 09-CR-0169 (appellate case No. 3-10-11),

Stall was indicted in case No. 09-CR-0170 (appellate case No. 3-10-12), and

Weese was indicted in case No. 09-CR-0179 (appellate case No. 3-10-13).

{¶ 9} Defendants were arraigned on November 16, 2009. Defendants filed

a joint motion to continue their trials on January 8, 2010. Along with the motion

to continue, the motion also requested that the trial court issue an order precluding

convictions on the counts of aggravated robbery, felonious assault, and

kidnapping. Defendants argued in their motion that pursuant to R.C. 2941.25, the

felonious-assault and the kidnapping counts were allied offenses of similar import

to the aggravated-robbery count, and thus, defendants could be convicted only on

1
Two of the defendants were indicted on additional counts for actions committed separately from the
October 2009 home invasion. Defendant Lee was also indicted on two additional counts, breaking and
entering and aggravated robbery, with respect to separate events that had taken place in September 2009.
Defendant Stall was also indicted on one unrelated count of possession of drugs.

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Case No. 3-10-11, 3-10-12 and 3-10-13

the aggravated-robbery count. The state filed its response to defendants’ motion

on January 11, 2010, claiming that the issue of merger could be determined only at

the sentencing phase of the trial.

{¶ 10} On January 11, 2010, the trial court issued its order, denying the

portion of the motion that was seeking a continuance of the trial date. Thereafter,

on January 21, 2010, defendants appeared before the trial court, entered pleas of

guilty to the charges set forth in the indictments, and requested to reserve the right

to argue the issue of merger at sentencing. Judgment entries of conviction were

issued on February 1, 2010.

{¶ 11} On March 4, 2010, defendants filed their response to the state’s

memorandum in opposition on the merger issue. On that same date, the state filed

its allied-offense brief, and on March 5, 2010, defendants filed their allied-offense

brief.

{¶ 12} A hearing on the merger issue was held on March 5, 2010.

Defendant Lee, Mrs. Siclair, and Detective Chad Filliater testified at the hearing.

Following the presentation of the evidence, the trial court allowed defendants and

the state time to present their written closing arguments. Defendants and the state

filed their final briefs on March 15, 2010. Thereafter, on March 31, 2010, the trial

court issued its ruling on the merger issues, denying the motion to merge the

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offenses of felonious assault and kidnapping with the offense of aggravated

robbery.

{¶ 13} Defendants were sentenced on April 5, 2010, as follows: on the

aggravated-burglary offense, Lee, Weese, and Stall were all sentenced to ten years

in prison; on the aggravated-robbery offense, Lee, Weese, and Stall were all

sentenced to ten years in prison; on the felonious-assault offense, Lee, Weese, and

Stall were all sentenced to eight years in prison; and as to Stall on the kidnapping

offense, he was sentenced to ten years in prison. All of defendants’ prison

sentences, including the additional unrelated sentences, were ordered to be served

consecutively.

{¶ 14} Defendants now appeal and raise only one assignment of error:

The trial court erred in failing to hold that offenses of aggravated
robbery, felonious assault and kidnapping were allied offenses of
similar import, requiring merger of the offenses for purposes of
sentencing.

{¶ 15} In defendants’ only assignment of error, they argue that the trial

court erred when it failed to find that the offenses of aggravated robbery, felonious

assault, and kidnapping were allied offenses of similar import, and as such, the

offenses should have merged for purposes of sentencing.

{¶ 16} R.C. 2941.25 is Ohio’s multiple-count statute. It provides:

(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the

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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.

{¶ 17} In order to determine whether the trial court should have merged any

of the offenses, we must apply the two-step analysis established by the Ohio

Supreme Court. State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911

N.E.2d 882, ¶ 10-13, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117,

526 N.E.2d 816. See also State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,

895 N.E.2d 149, ¶ 18. First, the court must compare the elements of the crimes.

“If the elements of the offenses correspond to such a degree that the commission

of one will result in the commission of the other, the crimes are allied offenses of

similar import.” Id. at ¶ 19, citing Blankenship at 117. If the offenses are found to

be allied offenses of similar import, then the court must proceed to the second

step, which calls for reviewing the defendant’s conduct in order to determine

whether the defendant can be convicted of both offenses. “If the court finds either

that the crimes were committed separately or that there was a separate animus for

each crime, the defendant may be convicted of both offenses.” Brown at ¶19,

citing Blankenship at 117. Additionally, because this assignment of error presents

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a question of law, our standard of review is de novo. State v. Loomis, 11th Dist.

No. 2002-A-0102, 2005-Ohio-1103, ¶8, citing State v. Ellenburg (July 9, 1998),

4th Dist. No. 97CA597, at *3.

{¶ 18} We note that the law regarding allied offenses of similar import has

been frequently addressed and discussed by the Ohio Supreme Court. In fact,

regarding the first step in the analytical process, the Ohio Supreme Court has had

to clarify its holding in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699,

paragraph one of the syllabus, in which the court held that “[u]nder an R.C.

2941.25(A) analysis, the statutorily defined elements of offenses that are claimed

to be of similar import are compared in the abstract.” (Emphasis sic.) Instead of

considering the elements of the offenses within the context of the facts of the

particular case, the Supreme Court found that comparing the elements in the

abstract was “the more functional test.” Id. at 636. In doing so, the Supreme

Court in Rance effectively overruled its prior analytical framework established in

Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83, 549 N.E.2d 520, in which the

court essentially compared the statutory elements of the offenses by reference to

the particular facts alleged in the indictment. Rance at 637-640.

{¶ 19} However, after Rance, several courts were interpreting the holding in

Rance as requiring a strict textual comparison of the elements of the offenses and

were only aligning the elements of the compared offenses in determining whether

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Case No. 3-10-11, 3-10-12 and 3-10-13

the compared offenses were allied offenses of similar import. As a result, the

Ohio Supreme Court clarified Rance in State v. Cabrales, 118 Ohio St.3d 54,

2008-Ohio-1625, 886 N.E.2d 181, and held that “[i]n determining whether

offenses are allied offenses of similar import under R.C. 2941.25(A), courts are

required to compare the elements of offenses in the abstract without considering

the evidence in the case, but are not required to find an exact alignment of the

elements.” (Emphasis added.) Id. at paragraph one of the syllabus. Since then,

the Supreme Court has consistently looked in the abstract at the elements of the

crimes charged to determine whether they are allied offenses of similar import,

and if so, then looked to the defendant’s conduct in the particular case to

determine whether the offenses were committed separately or with a separate

animus. See State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d

937, ¶ 23-27 (determining that attempted murder pursuant to R.C. 2903.02(A) and

felonious assault pursuant to R.C. 2903.11(A)(2) were allied offenses and that

under the facts of the case were committed with the same animus); State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29-33 (holding

that it was plain error to sentence defendant for two counts of aggravated theft and

two counts of theft that were allied offenses of similar import, even though

defendant’s sentences would remain the same length of time and despite defendant

having agreed to the sentence); State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-

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Case No. 3-10-11, 3-10-12 and 3-10-13

3323, 911 N.E.2d 882, ¶ 15-20 (holding that robbery under R.C. 2911.02(A)(2)

and aggravated robbery under R.C. 2911.01(A)(1) are allied offenses because

possession of a deadly weapon during a theft also constitutes a threat to inflict

physical harm and that felonious assault under R.C. 2903.11(A)(1) and

2903.11(A)(2) are allied offenses); State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-

1059, 905 N.E.2d 154, ¶ 13-25 (“[w]hen analyzed in the abstract, the crime of

kidnapping, defined by R.C. 2905.01(A)(2), and the crime of aggravated robbery,

defined by R.C. 2911.01(A)(1), are allied offenses of similar import” since

presence of a weapon that has been shown or used also forcibly restrains the

liberty of another); State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886

N.E.2d 181, ¶ 28-33 (holding that when offenses were analyzed in the abstract, the

offense of possessing a controlled substance under R.C. 2925.11(A) and the

offense of trafficking in a controlled substance under R.C. 2925.03(A)(1) were not

allied offenses, but the offense of possessing a controlled substance under R.C.

2925.11(A) and the offense of trafficking in a controlled substance under R.C.

2925.03(A)(2) were allied offenses).

{¶ 20} With that stated, we will now consider the particular offenses that

defendants claim are allied offenses of similar import. In this particular case, all

three defendants were charged with aggravated burglary, aggravated robbery, and

felonious assault, and only Stall was additionally charged with kidnapping.

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Case No. 3-10-11, 3-10-12 and 3-10-13

However, we note that for purposes of this appeal, defendants have not alleged

that the count of aggravated burglary should have merged with the counts of

aggravated robbery, felonious assault, and kidnapping. Thus, we will only

consider whether the offenses of aggravated robbery, felonious assault, and

kidnapping should have merged for purposes of sentencing.

Aggravated Robbery and Felonious Assault

{¶ 21} Here, defendants pleaded guilty to aggravated robbery pursuant to

R.C. 2911.01(A)(3), which states that “[n]o person, in attempting or committing a

theft offense, * * * shall * * * [i]nflict, or attempt to inflict, serious physical harm

on another.” Additionally, defendants pleaded guilty to felonious assault as

prescribed under R.C. 2903.11(A)(1), which states that “[n]o person shall

knowingly * * * cause serious physical harm to another.” When comparing the

elements of the offenses in the abstract, it appears that the commission of the

aggravated robbery by attempting or inflicting serious physical harm would

necessarily result in the commission of a felonious assault, which is the infliction

of serious physical harm. However, the state claims that the Ohio Supreme Court

has already ruled that the offenses of aggravated robbery and felonious assault are

not allied offenses of similar import. In State v. Preston, the Ohio Supreme Court

determined whether the crimes of aggravated robbery and felonious assault were

allied offenses of similar import and ultimately held that “[u]pon review of the

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Case No. 3-10-11, 3-10-12 and 3-10-13

record, we find that the commission of the aggravated robbery did not

automatically result in the commission of the felonious assault. Preston came into

the market and committed the aggravated robbery. Jones then knocked the gun

from Preston’s hand and a struggle ensued. Preston retrieved his gun and

committed a second crime, felonious assault, by pointing the gun at Jones and

shooting him.” (1986), 23 Ohio St.3d 64, 65-66, 491 N.E.2d 685. Since then,

several other appellate courts have cited Preston for the general proposition that

aggravated robbery and felonious assault are not allied offenses of similar import.

State v. Howell, 8th Dist. No. 92827, 2010-Ohio-3403; State v. Smith, 2nd Dist.

No. 08CA0060, 2009-Ohio-5048; State v. James, 12th Dist. No. CA2008-04-037,

2009-Ohio-1453; State v. Dixon, 4th Dist. No. 09CA3312, 2010-Ohio-5032; State

v. Allen, 115 Ohio App.3d 642, 685 N.E.2d 1304 (7th Dist.); State v. Jones (Mar.

13, 1991), 9th Dist. No. 14582. However, while the state urges this court to

follow the general proposition as stated in Preston, we are hesitant to do so for two

reasons.

{¶ 22} First of all, the particular subsections of aggravated robbery and

felonious assault analyzed by the Supreme Court in Preston differ from the

subsections of aggravated robbery and felonious assault charged in this particular

case. In Preston, the defendant was charged with aggravated robbery pursuant to

R.C. 2911.01(A)(1) (having a deadly weapon on one’s person while committing a

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theft offense) and felonious assault pursuant to R.C. 2903.11(A)(2) (causing

serious physical harm by means of a deadly weapon). 23 Ohio St.3d at 67

(Celebrezze, C.J., concurring). Here, defendants were charged with aggravated

robbery pursuant to R.C. 2911.01(A)(3) (inflicting serious physical harm while

committing a theft offense) and felonious assault pursuant to R.C. 2903.11(A)(1)

(causing serious physical harm). When considering the elements of aggravated

robbery pursuant to R.C. 2911.01(A)(1) and felonious assault pursuant to R.C.

2903.11(A)(2) in the abstract, we acknowledge that the two charges are not allied

offenses of similar import, since aggravated robbery requires the mere possession

of a deadly weapon, while felonious assault requires the actual use of a deadly

weapon to cause or attempt to cause serious physical harm to another. State v.

Gonzalez (Mar. 15, 2001), 8th Dist. No. 77338, at *7-8 (recognizing that Preston

looked only to the facts of the case when determining offenses were not allied

offenses, but after looking at the elements the appellate court held that aggravated

robbery required only possession of deadly weapon while felonious assault

required actual use of a deadly weapon to cause physical harm). Even the state

acknowledges that Preston did not deal with the same subsections for aggravated

robbery and felonious assault as were charged in this particular case; nevertheless,

the state points to a Second District case that applied the Preston holding to the

exact same charges as in the case sub judice. See State v. Smith, 2nd Dist. No.

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Case No. 3-10-11, 3-10-12 and 3-10-13

08CA0060, 2009-Ohio-5048, ¶20. In Smith, while citing the Supreme Court’s

opinion in Preston, the Second District held that aggravated robbery pursuant to

R.C. 2911.01(A)(3) and felonious assault pursuant to R.C. 2903.11(A)(1) and (2)

were not allied offenses of similar import. Id.

{¶ 23} While the charges in Smith were identical to the charges in the case

sub judice, we still are hesitant to follow the general proposition in Preston and

cited by Smith because second, and most importantly, we note that the Supreme

Court’s analytical framework in Preston differs from the analytical framework it

now uses and has significantly discussed in its recent cases involving allied

offenses of similar import. Importantly, as defendants point out in their reply

brief, Preston was decided based on the analytical framework that was overruled

by the Supreme Court in Rance. See Rance, 85 Ohio St.3d 632, paragraph one of

syllabus. Specifically, in Preston, the Ohio Supreme Court found that “upon

review of the record,” the offenses of aggravated robbery and felonious assault did

not automatically result in the commission of the other. 23 Ohio St.3d at 65-66.

This was because based on the facts of the case Jones had separately committed

the aggravated robbery and then later committed the felonious assault. Id.

However, the approach used by the Supreme Court in Preston is not the same

approach it has recently used; rather, the court has made it clear that the first step

in the allied-offenses analysis is to look at the elements of the offenses charged in

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the abstract. Compare Rance at paragraph one of the syllabus with Preston, 23

Ohio St.3d at 65-66. Essentially, the Supreme Court has required that we first

compare the elements of the offenses in the abstract, that is, by the elements

established by the General Assembly, and not based on the facts of each case.

Rance at 639.

{¶ 24} Consequently, for the above two reasons, we are hesitant to rely on

the Supreme Court’s holding in Preston and the subsequent appellate cases that

have cited it for the general proposition that aggravated robbery and felonious

assault are not allied offenses of similar import. However, even assuming

arguendo that aggravated robbery pursuant to R.C. 2911.01(A)(3) and felonious

assault pursuant to R.C. 2903.11(A)(1) are allied offenses of similar import, when

considering the second step in the allied-offenses analysis, under the particular

facts of this case, we find that the aggravated robbery and felonious assault were

committed separately and with separate animus.

{¶ 25} Again, “[i]f the court finds either that the crimes were committed

separately or that there was a separate animus for each crime, the defendant may

be convicted of both offenses.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at

¶19, citing Blankenship, 38 Ohio St.3d at 117. Here, based on the evidence

presented at the hearing, we find that there was evidence that the aggravated

robbery and the felonious assault were committed separately and were committed

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with separate animus. In particular, the felonious assault was committed when,

after being pushed to the ground and hitting her head on the end table, Mrs. Siclair

was then punched in her face with such force that it caused her to bleed and

required seven stitches at the hospital. The facts indicate that the felonious assault

was committed with the purpose to debilitate Mrs. Siclair and render her

immobile. On the other hand, the aggravated robbery was completed when, after

being dragged into the kitchen, Mrs. Siclair was then punched several times with a

closed fist while the defendants demanded to know where the money, drugs, and

her purse were located. Again, the facts indicate that the purpose of hitting her

several times in the kitchen was to locate and obtain money and/or drugs, in other

words, the theft portion of the aggravated-robbery offense.2

{¶ 26} Therefore, we ultimately find that because the offenses were

committed separately and with separate animus, the trial court did not err in

sentencing the defendants separately on the aggravated-robbery and felonious-

assault counts.

Kidnapping and Aggravated Robbery

2
In its brief, the state argues that under the Ohio Supreme Court’s decision in State v. Cooper, if we find
that the acts were committed separately or with separate animus, then we need not address at all whether
the offenses are allied offenses of similar import. 104 Ohio St.3d 293, 2004-Ohio-6553, 819 N.E.2d 657, ¶
17, 29-30. While we acknowledge that under Cooper’s holding, our allied-offense discussion may have
been unnecessary given the ultimate result, we believe it was still necessary to clarify our position with
respect to the aggravated-robbery and the felonious-assault offenses charged in this particular case,
especially in light of the Supreme Court’s recent opinions regarding allied offenses of similar import.

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{¶ 27} With respect to Stall, we must consider whether the offenses of

kidnapping as defined under R.C. 2905.01(A)(3) and aggravated robbery as

defined under R.C. 2911.01(A)(3) are allied offenses of similar import. R.C.

2905.01(A)(3) states that “[n]o person, by force, or deception * * * by any means,

shall remove another from the place where the other person is found or restrain the

liberty of the other person * * * [t]o terrorize, or to inflict serious physical harm on

the victim or another.” Moreover, as stated above, aggravated robbery pursuant to

R.C. 2911.01(A)(3) states that “[n]o person, in attempting or committing a theft

offense, * * * shall * * * [i]nflict, or attempt to inflict, serious physical harm on

another.”

{¶ 28} Recently, the Ohio Supreme Court determined that kidnapping

pursuant to R.C. 2905.01(A)(2) and aggravated robbery pursuant to R.C.

2911.01(A)(1) were allied offenses of similar import. State v. Winn, 121 Ohio

St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, ¶25. While holding that the two

offenses were so similar that the commission of one necessarily resulted in the

commission of the other, the court also noted that its holding in Winn was

consistent with “30 years of precedent.” Id. at ¶ 22, citing State v. Logan (1979),

60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (noting Logan “has been considered

authority for the proposition that kidnapping and robbery are allied offenses of

similar import”). See also State v. Jenkins (1984), 15 Ohio St.3d 164, 198, 473

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Case No. 3-10-11, 3-10-12 and 3-10-13

N.E.2d 264, fn. 29 (pre-Rance case, citing Logan for the proposition that “implicit

within every robbery (and aggravated robbery) is a kidnapping”); State v. Fears

(1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136 (unless offenses were committed

with separate animus, specifications for kidnapping merge with specifications for

aggravated robbery); State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d

31, ¶204, citing Jenkins, 15 Ohio St.3d at 198 (“kidnapping is implicit within

every aggravated robbery”); Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, at ¶

18, 25, 886 N.E.2d 181. Consequently, we must now consider Stall’s conduct to

determine whether he can be convicted of both kidnapping and aggravated

robbery.

{¶ 29} The Supreme Court has also discussed the “separate animus”

analysis with respect to kidnapping charges and has established the following

guidelines in determining whether kidnapping and another offense of the same or

similar kind are committed with a separate animus:

(a) Where the restraint or movement of the victim is merely
incidental to a separate underlying crime, there exists no separate
animus sufficient to sustain separate convictions; however, where
the restraint is prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to
each offense sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects the
victim to a substantial increase in risk of harm separate and apart
from that involved in the underlying crime, there exists a separate
animus as to each offense sufficient to support separate convictions.

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Case No. 3-10-11, 3-10-12 and 3-10-13

State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345, at syllabus. As a result,

“when a kidnapping is committed during another crime, there exists no separate

animus where the restraint or movement of the victim is merely incidental to the

underlying crime.” Fears, 86 Ohio St.3d at 344, citing Logan at syllabus.

{¶ 30} In this case, we find that the facts indicate that the restraint and

movement of Mrs. Siclair were merely incidental to the underlying crime of

aggravated robbery. The facts in the record illustrate that after getting punched in

the face (which was the commission of the felonious assault as discussed above),

Mrs. Siclair was dragged by Stall over a step into the kitchen, at which point, Stall

then duct-taped her mouth. After taping her mouth, defendants began asking her

for the location of the money and drugs, and when Mrs. Siclair would not respond,

she was hit with a closed fist. Based on these facts, we fail to see how Stall’s

actions that are claimed to be “kidnapping” were anything other than actions in

furtherance of the aggravated robbery.

{¶ 31} Nevertheless, the state relies on the fact that Mrs. Siclair was

dragged over the step into the kitchen to support its claim that the kidnapping

offense was committed separately from the aggravated-robbery offense. However,

in Logan, the Supreme Court concluded that forcing the victim into an alley and

down a flight of stairs prior to raping her was merely incidental to the separate

underlying crime of rape, and thus, the charge of kidnapping should have merged

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Case No. 3-10-11, 3-10-12 and 3-10-13

with the charge of rape. 60 Ohio St.2d at 132-136. In particular, the court found

that “[i]n the instant case, the restraint and movement of the victim had no

significance apart from facilitating the rape. The detention was brief, the

movement was slight, and the victim was released immediately following the

commission of the rape.” Id. at 135. If moving a victim into an alley and down a

flight of stairs did not give rise to a finding that the kidnapping offense was

committed separately at that point in time, we fail to see how moving Mrs. Siclair

into another room can, by itself, justify a finding that the kidnapping offense was

likewise committed at that point in time. See Logan, 60 Ohio St.2d at 132-136.

There is nothing in the record that indicates that Mrs. Siclair was moved from the

residence to another location; rather, she was simply moved from one room to

another.

{¶ 32} Despite the minimal movement of Mrs. Siclair, the state also claims

that Mrs. Siclair was subjected to a greater risk of harm beyond that already

created by the factors involved in the commission of the aggravated-robbery

offense when Stall duct-taped her mouth, which caused her to have difficulty

breathing. However, given the fact that defendants began repeatedly asking her

for the location of the money after Mrs. Siclair’s mouth was duct-taped, we

believe that taping Mrs. Siclair’s mouth only furthered defendants’ attempts at

intimidating her into revealing the location of the money, and thus had no

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Case No. 3-10-11, 3-10-12 and 3-10-13

significance apart from facilitating the aggravated robbery. While we do not wish

to minimize the seriousness of the defendants’ actions or the effect that their

actions had on Mrs. Siclair, we simply cannot find that Mrs. Siclair was subjected

to a greater risk of harm beyond that already created by the factors involved in the

commission of the aggravated robbery. As the Supreme Court stated in Logan,

“when a person commits the crime of robbery, he must, by the very nature of the

crime, restrain the victim for a sufficient amount of time to complete the robbery.”

60 Ohio St.2d at 131, 14 O.O.3d 373, 397 N.E.2d 1345. “[W]ithout more, there

exists a single animus, and R.C. 2941.25 prohibits convictions for both offenses.”

Id. at 132. Here, the only restraint on Mrs. Siclair was when Stall placed duct tape

around her head to cover her mouth. There is nothing in the record to indicate that

her feet or arms were also bound together. In fact, as soon as defendants left the

house, Mrs. Siclair was able to freely move, and did so when she went to where

husband was sleeping, woke him up, and called the police. Thus, we find that the

facts in this case only indicate that the restraint and movement of Mrs. Siclair were

merely incidental to the underlying crime of aggravated robbery.

{¶ 33} Overall, based on the evidence presented at the hearing, and in light

of the Supreme Court’s decision in Logan, we cannot find that the kidnapping was

committed separately or with separate animus from the aggravated robbery.

Therefore, while we find that the trial court correctly sentenced Stall separately

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Case No. 3-10-11, 3-10-12 and 3-10-13

with respect to the aggravated robbery and felonious assault, we find that Stall’s

kidnapping sentence should have merged with his aggravated-robbery sentence.

{¶ 34} Defendants’ only assignment of error is, therefore, sustained in part

and overruled in part.

{¶ 35} Having found no error prejudicial to the appellants Lee and Weese

herein in the particulars assigned and argued with respect to appellants’

assignment of error, we affirm the judgments of the trial court in case Nos. 3-10-

11 and 3-10-13. However, having found partial error prejudicial to appellant Stall

herein in the particulars assigned and argued with respect to appellants’

assignment of error, we affirm in part and reverse in part the judgment of the trial

court in case No. 3-10-12 and remand for further proceedings consistent with this

opinion.

Judgment accordingly.

WILLAMOWSKI, P.J., and ROGERS, J., concur.

__________________

ROGERS, J., concurring separately.

{¶36} I concur fully in the majority opinion and conclusion that Stall’s

kidnapping sentence should have merged with his aggravated-robbery sentence in

case 3-10-12. Additionally, I concur with the majority’s conclusion in cases 3-10-

11, 3-10-12, and 3-10-13 that the offenses of felonious assault and aggravated

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Case No. 3-10-11, 3-10-12 and 3-10-13

robbery were committed separately and with a separate animus; however, I wish to

elaborate on the majority’s analysis in reaching this conclusion.

{¶37} The majority finds that the defendants’ acts upon entering the

victim’s residence of pushing her to the ground, causing her to hit her head, and

punching her in the face constituted the offense of felonious assault and that the

felonious assault was committed with the purpose to debilitate the victim and

render her immobile. Additionally, the majority finds that the defendants’ acts

after dragging the victim into her kitchen of punching her several more times

while demanding to know where items were in the residence constituted the

offense of aggravated robbery and that the purpose of these punches was to locate

and obtain the items. I believe that an additional theory and additional case law

support the finding of a separate animus for the felonious assault and aggravated

robbery.

{¶38} This court has previously found that in determining whether a

separate animus exists for two offenses, a court may examine “case-specific

factors such as whether the defendant at some point broke ‘a temporal continuum

started by his initial act,’ [or] whether facts appear in the record that ‘distinguish

the circumstances or draw a line of distinction that enables a trier of fact to

reasonably conclude separate and distinct crimes were committed.’” State v.

Roberts, 180 Ohio App.3d 666, 2009-Ohio-298, ¶14, quoting State v. Williams,

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Case No. 3-10-11, 3-10-12 and 3-10-13

8th Dist. No. 89726, 2008-Ohio-5286, ¶37; State v. Hines, 8th Dist. No. 90125,

2008-Ohio-4236, ¶48. See also State v. Cronin, 6th Dist. No. S-09-032, 2010-

Ohio-4717, ¶45; State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, ¶52;

State v. Nuh, 10th Dist. No. 10AP-31, 2010-Ohio-4740, ¶16; Thompkins v. Ross

(S.D.Ohio 2009), 2009 WL 4842247, fn. 1.

{¶39} Here, I would find that the defendants’ act of dragging the victim to

another area of her home constituted a break in the temporal continuum or line of

distinction and that the defendants’ resumption of punching the victim following

this break would constitute a separate and distinct offense. Consequently, I would

find that a separate animus existed for the felonious assault and aggravated

robbery on this theory as well and would affirm the defendants’ convictions for

these separate offenses on that basis.

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