State v. Garner, 2012 Ohio 1439

In June 2010 Garner was indicted on kidnapping under R.C. 2905.01(A)(3)/(B)(2) and criminal child enticement; enticement was dismissed and trial proceeded on kidnapping; the jury ultimately convicted Garner of kidnapping and the court sentenced him to five years.
Garner lured nine-year-old D.A.S. to the basement of a rooming house and paid her $5 to pretend to be his daughter, then directed her to stay in a basement bedroom.
Garner led D.A.S. into a tenant’s basement room where adults with criminal records were present; he did not place her in a safe area and warned her to stay put while he answered the door.
D.A.S.’s father arrived, Garner lied about her location, and law enforcement arrived after D.A.S. was found to be missing; Garner claimed he did not know how she got into the house.
The trial court determined there was sufficient evidence to support kidnapping under R.C. 2905.01(B)(2) but not under (A)(3), and the jury was instructed accordingly; the appeal questions sufficiency, weight of the evidence, and a requested lesser-included instruction.
Moore, P.J., wrote the majority affirming; Dickinson, J., dissented concluding there was insufficient evidence to prove substantial risk of serious physical harm.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence to support the kidnapping conviction?	State argued the totality of circumstances showed restraint under (B)(2) created a substantial risk of serious harm.	Garner argued the circumstances did not create a substantial risk of serious physical harm.	Yes; sufficient evidence supported (B)(2).
Is the conviction against the manifest weight of the evidence?	State contends the jury acted within its credibility determinations.	Garner claims the weight of the evidence outweighed the conviction.	No; not against the manifest weight.
Was there plain error in omitting a lesser included offense instruction on criminal child enticement?	State urged no plain error; the instruction was not required.	Garner argued failure to instruct was plain error.	No plain error; no requirement to give the instruction.

State v. Vinson, 5th Dist. No. 2003CA00132, 2004-Ohio-1568 (Ohio 5th Dist. (2004)) (relevant to substantial risk analysis in kidnapping)
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist. 1986) (standard for reviewing sufficiency/weight of evidence)
State v. Thomas, 2006–Ohio–4241 (9th Dist.) (discretionary review of weight of evidence applies; credibility assessments)
State v. Deem, 40 Ohio St.3d 205 (1988) (test for lesser included offenses (Deem))
State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260 (Ohio Supreme Court) (modifies Deem test for mutually exclusive methods)
State v. Andrews, 2010-Ohio-6126 (9th Dist.) (credibility and sufficiency in appellate review)
State v. Pigg, 2009-Ohio-2107 (9th Dist.) (reaffirmed right to waive lesser-included instructions)
State v. Hughes, 2009-Ohio-4115 (3d Dist.) (analysis of substantial risk in child safety contexts)
State v. Allen, 140 Ohio App.3d 322, 324 (1st Dist. 2000) (limits on speculative risks to child safety)
State v. Hardges, 2008-Ohio-5567 (9th Dist.) (plain error analysis in appellate review)