[Cite as State v. Moore, 2011-Ohio-2934.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96122
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AKRAM MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535121
BEFORE: Boyle, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 16, 2011
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ATTORNEY FOR APPELLANT
Elizabeth A. Thomarios
50 Baker Boulevard
Suite 6
Akron, Ohio 44333
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶ 2} Defendant-appellant, Akram Moore, appeals the sentence he received for his
kidnapping and gross sexual imposition convictions. He raises two assignments of error for
our review:
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{¶ 3} “[1.] The trial court committed plain error by sentencing appellant to
consecutive sentences on the kidnapping and gross sexual imposition charges as they were
allied offenses.
{¶ 4} “[2.] Appellant’s sentence is contrary to law and the overriding purpose of
felony sentencing.”
{¶ 5} Finding no merit to his appeal, we affirm.
Procedural History
{¶ 6} In March 2010, the grand jury indicted Moore on one count of kidnapping, in
violation of R.C. 2905.01(A)(4), with a sexual motivation specification, and four counts of
gross sexual imposition, in violation of R.C. 2907.05(A)(1).
{¶ 7} Moore pleaded guilty to the indictment as charged, with the exception of the
sexual motivation specification, which the state deleted from the indictment.
{¶ 8} The trial court sentenced Moore to an aggregate term of six and one-half years
in prison, including five years for kidnapping and 18 months for each of the gross sexual
imposition charges, which were to be served concurrent to one another, but consecutive to the
kidnapping term. The trial court also notified Moore that he would be subject to five years of
postrelease control upon his release from prison and be labeled a Tier II sex offender.
Allied Offenses
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{¶ 9} In his first assignment of error, Moore argues that the trial court erred when it
sentenced him on both the kidnapping and gross sexual imposition convictions because he
claims that they were allied offenses.
{¶ 10} We normally review the issue of whether two offenses are allied under a de
novo standard of review. See State v. Young, 2d Dist. No. 23438, 2010-Ohio-5157. Here,
however, Moore failed to object to the trial court’s sentencing him on both offenses. We
therefore review it under the plain error standard. But our review is essentially the same
because “imposition of multiple sentences for allied offenses of similar import is plain error.”
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31.
{¶ 11} “The double jeopardy clauses of both the United States and Ohio Constitutions
protect ‘an individual against successive punishments as well as successive prosecutions for
the same offense.’ State v. Moore (1996), 110 Ohio App.3d 649, 652, 675 N.E.2d 13
(citations omitted). ‘Ohio’s allied offenses statute, R.C. 2941.25, protects against multiple
punishments for the same criminal conduct in violation of the Double Jeopardy Clauses of the
United States and Ohio Constitutions.’ Id. at 653, 675 N.E.2d 13.” State v. Lowery, 11th
Dist. No. 2007-T-0085, 2008-Ohio-1896, ¶11. In the committee comment to R.C. 2941.25,
the drafters explained that “the basic thrust of the section is to prevent ‘shotgun’ convictions.”
{¶ 12} R.C. 2941.25 provides:
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{¶ 13} “(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.
{¶ 14} “(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.”
{¶ 15} In the recent Ohio Supreme Court case, State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, the court thoroughly reviewed its “difficult ***
jurisprudence on allied offenses” from 1971 to the present. See id. at ¶7 - 40. But most
notably, in Johnson, the Supreme Court finally overruled State v. Rance, 85 Ohio St.3d 632,
1999-Ohio-291, 710 N.E.2d 699, where it had held that courts should compare the statutory
elements in the abstract. Johnson at paragraph one of the syllabus. The Supreme Court
explained that Rance had ignored the mandates of R.C. 2941.25, “which expressly instructs
courts to consider the offenses at issue in light of the defendant’s conduct.” Johnson at ¶46.
{¶ 16} In Johnson, the Supreme Court explained that “whether offenses are allied
offenses of similar import under R.C. 2941.25(A) *** is whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is possible to commit one
without committing the other. *** If the offenses correspond to such a degree that the
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conduct of the defendant constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import.” (Internal citations omitted.) Id. at ¶48.
{¶ 17} Then, “[i]f the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same conduct, i.e., ‘a
single act, committed with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50 (Lanzinger, J., dissenting).
{¶ 18} “If the answer to both questions is yes, then the offenses are allied offenses of
similar import and will be merged.” Id. at ¶50.
{¶ 19} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or if
the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the
offenses will not merge.” Id. at ¶51.
Application of Johnson
{¶ 20} R.C. 2905.01(A)(1) sets forth the elements of kidnapping as: “[n]o person, by
force, threat, 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 engage in sexual
activity, as defined in section 2907.01 of the Revised Code, with the victim against the
victim’s will.”
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{¶ 21} Gross sexual imposition under R.C. 2907.05(A)(1) provides that “[n]o person
shall have sexual contact with another *** when *** [t]he offender purposely compels the
other person, or one of the other persons, to submit by force or threat of force.”
{¶ 22} There is no question that kidnapping and gross sexual imposition can be
committed by the same conduct under the first prong set forth in Johnson. The state
concedes as much. But the state maintains that the trial court correctly found that the
kidnapping and gross sexual imposition offenses were committed with a separate animus
because Moore first drove the victim to a secluded place, where he then committed the acts of
gross sexual imposition, and restrained her liberty for an hour.
{¶ 23} The victim wrote a letter to the court, which was read into the record by a
victim’s representative. The victim explained that before the acts occurred, Moore had been
driving her from his house in Cleveland Heights to her house in Garfield Heights. She stated,
“[i]nstead of the freeway route we were going to take, we took back roads. At the stop sign
he turned off the car and molested me. After about an hour, he drove me the rest of the way
home.”
{¶ 24} In the presentence investigation report (“PSI”), the offense summary contained
in the Shaker Heights police report, states: “While driving [Jane Doe] home, Moore deviated
from his usual route and began to take back roads. When they arrived at an intersection, later
identified as the corner of South Park Road and Park Drive, Moore turned the car off and the
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headlights.” Moore then committed the acts of gross sexual imposition. Then, “Moore
turned the car back on and proceeded to drive down Lee Road” to the victim’s home in
Garfield Heights.
{¶ 25} Over thirty years ago, the Ohio Supreme Court set forth a test to establish
“whether kidnapping and another offense of the same or similar kind [were] committed with a
separate animus as to each pursuant to R.C. 2941.25(B).” State v. Logan (1979), 60 Ohio
St.2d 126, 397 N.E.2d 1345, syllabus. The court held:
{¶ 26} “(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;
{¶ 27} “(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.” Id.
{¶ 28} In Logan, the Ohio Supreme Court explained:
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{¶ 29} “We believe that prolonged restraint without asportation may be as
penologically significant as substantial asportation and, under certain circumstances, will
support a conviction for kidnapping as a separate act or animus from that of rape.
{¶ 30} “Secret confinement, such as in an abandoned building or nontrafficked area,
without the showing of any substantial asportation, may, in a given instance, also signify a
separate animus and support a conviction for kidnapping apart from the commission of an
underlying offense.
{¶ 31} “The primary issue, however, is whether the restraint or movement of the victim
is merely incidental to a separate underlying crime or, instead, whether it has a significance
independent of the other offense. In 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.
In such circumstances, we cannot say that appellant had a separate animus to commit
kidnapping.” Id. at 135.
{¶ 32} In Logan, the victim was accosted at the entrance to an alley and was forced
down the alley, around a corner, and down a flight of stairs, where she was raped. She was
then immediately released. Id. at 126-27. Under these circumstances, the Supreme Court of
Ohio concluded that the detention and asportation were incidental and no separate animus
existed. Id. at 136-37.
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{¶ 33} Moore argues that there was no separate animus because he committed the acts
while he was simply driving the victim to her house, as he had done many other times. He
maintains, “[t]he normal and most direct way to the victim’s home from Cleveland Heights to
Garfield Heights does not involve the highway, or any major interstate. Anyone familiar
with Cleveland Heights understands that it is landlocked from any highway access and side
roads are the most convenient and only way of travel to get anywhere.”
{¶ 34} While we agree with Moore that the interstate may not have been the most
direct route to the victim’s house, he still veered off of his route on Lee Road and into a park
(according to the police report indicating that Moore stopped at the intersection of South Park
Road and Park Drive), where he kept the victim for about an hour, to commit the acts of gross
sexual imposition against her. Thus, we agree with the trial court that Moore’s driving the
victim to a secluded place was committed with a separate animus separate from the acts of
gross sexual imposition.
{¶ 35} Accordingly, the trial court did not err, and Moore’s first assignment of error is
overruled.
Maximum Prison Sentence
{¶ 36} In his second assignment of error, Moore argues that the trial court erred when
it sentenced him to the maximum prison term for kidnapping, five years, and for gross sexual
imposition, 18 months, and ordered them to be served consecutively. He maintains that the
trial court failed to consider any of the factors in R.C. 2929.12 and 2929.14. We disagree.
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{¶ 37} Appellate courts must apply a two-step approach when reviewing a defendant’s
sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First,
they must examine the sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly contrary
to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an
abuse-of-discretion standard.” Id.
{¶ 38} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio
Supreme Court held that trial courts “have full discretion to impose a prison sentence within
the statutory range and are no longer required to make findings or give their reasons for
imposing maximum, consecutive, or more than the minimum sentences.” Id. at ¶100.
Indeed, Foster severed those sections of the Revised Code that required trial courts to make
findings of fact before sentencing an offender to maximum or consecutive sentences. Id. at
paragraphs one and three of the syllabus. The Supreme Court recently upheld Foster in State
v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.
{¶ 39} In Kalish, the Supreme Court explained that “[a]lthough Foster eliminated
mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C.
2929.11 and 2929.12. The trial court must still consider these statutes.” Id. at ¶13, citing
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.
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{¶ 40} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish at ¶17.
“Instead, they serve as an overarching guide for trial judges to consider in fashioning an
appropriate sentence. In considering these statutes in light of Foster, the trial court has full
discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s
sentencing structure. Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its
discretion in considering whether its sentence complies with the purposes of sentencing.” Id.
“Therefore, assuming the trial court has complied with the applicable rules and statutes, the
exercise of its discretion in selecting a sentence within the permissible statutory range is
subject to review for abuse of discretion pursuant to Foster.” Id.
{¶ 41} In Kalish, the Supreme Court also made clear that even after Foster, “where the
trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is
presumed that the trial court gave proper consideration to those statutes.” Id. at fn. 4, citing
State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.
{¶ 42} R.C. 2929.11(A) provides that when a trial court sentences an offender for a
felony conviction it must be guided by the “overriding purposes of felony sentencing.”
Those purposes are “to protect the public from future crime by the offender and others and to
punish the offender.” R.C. 2929.11(B) states that a felony sentence “must be reasonably
calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with and
not demeaning to the seriousness of the crime and its impact on the victim, and consistent with
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sentences imposed for similar crimes committed by similar offenders.” And R.C. 2929.12
sets forth factors concerning the seriousness of the offense and recidivism factors.
{¶ 43} After reviewing the record in this case, we find that it supports the inference
that the trial court properly considered the factors in R.C. 2929.12 and adhered to the purposes
and principles of sentencing set forth in R.C. 2929.11.
{¶ 44} At the sentencing hearing, the trial court stated that it considered the documents
provided by defense counsel, establishing that Moore has enrolled himself in counseling,
Moore’s military records and commendations, as well as records from Recovery Resources,
and other letters of support on behalf of Moore. But the trial court further indicated that it
listened to the victim and the victim’s mother, who both told a “different side of the story.”
The victim and the victim’s mother informed the court of the difficulties the victim has had
since the acts occurred, as well as the difficulty it has had on the entire family. The court
further explained that just because Moore had a minimal “past criminal history,” the court
could “not get around the nature of the seriousness of the conduct.” The court also stated
that although Moore was admitting his “mistake,” it appeared that some of the people who
wrote letters on behalf of Moore were blaming the victim, claiming that the acts were “not as
big a deal as everybody [was] making it.”
{¶ 45} We find, based on the record before us, that the trial court carefully considered
the factors in R.C. 2929.11 and 2929.12 when sentencing Moore.
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{¶ 46} Accordingly, Moore’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR