State v. Gardner, 2011 Ohio 2644

Frank Gardner was convicted by a Mahoning County jury on felonious assault, two kidnappings, and rape, with firearm specifications; one count of aggravated robbery was acquitted.
The trial court merged the two kidnapping counts for sentencing but improperly entered sentences on both merged counts.
The court also sentenced the kidnapping counts to ten years each, running concurrently with each other and with felonious assault and rape, despite merger.
The State sought the maximum sentence and the defense argued for merger of the kidnapping counts with each other and with rape.
The appellate court held the kidnapping counts were merged for sentencing purposes and remanded for the State to elect which kidnapping conviction would remain for sentencing; it also held the kidnapping did not merge with the rape.
The weight of the victim’s testimony was found not to be against the manifest weight of the evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the kidnapping counts were properly merged for sentencing	State argues merger was not required	Gardner argues all allied offenses should merge	Procedural error; remand for State to elect which kidnapping remains for sentencing
Whether kidnapping should merge with rape	State contends no separate animus; rape during kidnapping is allied	Gardner argues merger should apply	Kidnapping and rape not merged; separate animus found
Whether the conviction was against the manifest weight of the evidence	State cites victim's credibility and corroboration	Defense questions victim credibility	Not contrary to manifest weight; credibility issue for jury

State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (supreme court instructs to consider defendant’s conduct when determining allied offenses)
State v. Whitfield, 124 Ohio St.3d 319 (2010-Ohio-2) (merger requires sentencing on one allied offense; error if multiple sentences remain)
State v. Rance, 85 Ohio St.3d 632 (1999) (elements comparison used to determine allied offenses under 2941.25)
State v. Cabrales, 118 Ohio St.3d 54 (2008-Ohio-1625) (modifies Rance; considers conduct in determining allied offenses)
State v. Logan, 60 Ohio St.2d 126 (1979) (animus analysis for kidnapping vs. rape)
State v. Adams, 103 Ohio St.3d 508 (2004-Ohio-5845) (no separate animus where restraint aids underlying rape)
State v. Fears, 86 Ohio St.3d 329 (1999) (separate animus criteria for kidnapping during underlying crime)