State v. Smith

BRYANT, J.,

concurring in part, dissenting in part.

Being unable to agree with the majority's disposition of the fifth assignment of error, I respectfully dissent from that portion of the opinion.

As the majority notes, State v. Logan (1979), 60 Ohio St. 2d 126, sets forth the rationale for *332analyzing R.C. 2941.25 in rape and kidnapping cases:

"(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"

The Supreme Court subsequently applied that test in State v. Rogers (1985), 17 Ohio St. 3d 174, wherein defendant moved his victim "up an outside stairway into his apartment and then to hisbedroom." Noting defendant's actions therein involved both secretive and substantial movement of the victim, the Supreme Court determined that the kidnapping was not merely incidental to the rape. In explaining, the court stated:

"*** gucb a case wouid be found where the only restraint involved was the holding of the victim in place while a defendant raped her ***" Id. at 182. The case herein involves movement as secretive and substantial as that in Rogers, including asportation by car. Cf. State v. Thomas (Aug. 5, 1986), Franklin App. No. 85AP-414, unreported (1986 Opinions 2010). Moreover, defendant's use of physical force in slamming the victim's head against the car increased the risk of harm to her. Cf. State v. Scott (Sept. 29, 1988), Franklin App. No. 88AP-346, unreported (1988 Opinions 3648).

Accordingly, under Logan, I would overrule defendant's fifth assignment of error.