433 N.E.2d 1280 | Ohio Ct. App. | 1980
On April 6, 1979, defendant-appellant William J. Moralevitz, hereinafter referred to as appellant, was indicted on one count of kidnapping, as defined by R. C.
Appellant was tried before a jury on May 29, 1979. On May 31, 1979, appellant was found guilty of all four counts of the indictment. Appellant was sentenced to terms of imprisonment of five to fifteen years on the count of kidnapping and three to ten years on the counts of gross sexual imposition. All of the sentences were to be served consecutively. Appellant appeals from this judgment.
A summary of the relevant evidence now follows:
The state presented as its key witness the young victim of the offenses, Jill B. After an extensive voir dire examination, the court ruled the child competent to testify. The child testified that she was seven years old; that on March 3, 1979, "Bill" took her with him in his car to get some chicken to surprise a friend, Francine; that he first stopped at Burg's store to get wine while Jill stayed in the car; that instead of going to pick up chicken, he drove with Jill to the lake; that he then asked her to get undressed; that he put his finger between her legs; that he put his hand on her chest; and that he put his *22 tongue in between her legs, by her "private." Also "Bill" told her that if she told anyone, "I'll throw you in the lake." The witness testified that she felt "terrible" and wanted to go home. She tried to get out of the car but the doors were locked. The child did not know how long she was at the lake. "Bill" then drove her from the lake to a corner on East 78th Street. The witness then walked to her home on East 77th Street. She told her mother what had happened and was taken to the hospital. The child identified the appellant in court as "Bill," the individual who had done these things to her.
Francine Garver testified that on March 3, 1979, she was visiting her sister Carol Gross at 1101 East 78th Street; that Jill B. was also there that day; that she and Jill were driven by appellant to buy chicken at Fana's Foods; and that they could not purchase chicken because the store manager told them it was not ready. They then drove back to her sister's home. Francine stated that she later walked to Burg's store where she saw appellant and that he was still there when she left the store. Francine did not recall what time it was when she left the store. She did not see appellant any more that day. She indicated that they were supposed to see each other later in the day to go driving.
Jill's mother testified that her daughter was playing at Carol Gross' house on the day in question with Carol's children; that she saw Jill at 3:30 p.m. when the child came back for her hula hoop; and that she did not see her child again until about 5:20 p.m. when the girl came home with her face flushed and eyes red from crying.
Dr. Richard Niemczura, the physician who examined Jill at the Euclid General Hospital Emergency Room, testified that there was an abrasion on her abdomen; that her vaginal area was somewhat reddened; and that laboratory tests of a specimen taken from the vagina of the child revealed the presence of amylase, an enzyme found in saliva.
A number of other witnesses also testified for the state. When the state concluded its presentation of evidence, appellant moved for a judgment of acquittal on all charges. The court overruled the motion. Appellant then rested. Appellant then moved again that he be acquitted; that the kidnapping and gross sexual imposition counts were allied offenses and that the jury should not be permitted to consider both the kidnapping *23 and gross sexual imposition counts; and that the court dismiss two of the three gross sexual imposition counts on allied offense grounds. The court overruled these motions.
Appellant assigns three assignments of error for our consideration. They are as follows:
"I. The trial court erred in denying defendant-appellant's motion for directed verdict of acquittal as to the kidnapping count and allowing the jury to consider that count.
"II. The trial court erred in denying defendant-appellant's motion for directed verdict and allowing the jury to consider three counts of gross sexual imposition.
"III. The verdict of the jury was against the manifest weight of the evidence and the trial court erred in not granting defendant-appellant's motion for acquittal."
The first assignment of error raises the question of whether kidnapping under R. C.
Appellant argues that the trial court erred in permitting the jury to consider the offenses of both kidnapping and gross sexual imposition since these were allied offenses under R. C.
The trial court was correct in permitting the jury to consider all of the offenses charged. The allied offense doctrine merely prohibits conviction of allied offenses, not the submission of the offenses to the jury. State v. Osborne (1976),
R. C.
"(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. *24
"(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."
In the case of State v. Donald (1979),
"Kidnapping, as defined by R. C.
In reaching this conclusion, the court explained as follows:
"A comparison of R. C.
The common or similar elements of both kidnapping and rape are force and restraint.
The court further explained the significance of theDonald case in the case of State v. Logan (1979),
"In essence, Donald established that in order for two crimesto constitute allied offenses of similar import, there must be arecognized similarity between the elements of the crimescommitted. The offenses and their elements must correspond tosuch a degree that commission of the one offense will result inthe commission of the other.
"In addition to the requirement of similar import of the crimes committed, the defendant, in order to obtain theprotection of R. C.
"Even though there might be a shield initially provided a defendant under R. C.
In the case of State v. Roberts (1980),
"A comparison of the instant facts and the elements of R. C.
The above authorities indicate that the threshold question in determining whether two offenses are "offenses of similar import" is whether both offenses have similar, common or corresponding elements such that if one crime were to be proven, the other crime would be simultaneously proven.
Based on these authorities, the determination of an allied offense question is a two-step process. The first step is a statutory analysis whereby the elements of the applicable statutes are reviewed and a determination made as to whether the offenses are allied offenses of similar import. Offenses of *26 similar import are those which have similar elements, common elements or offenses whose elements correspond to such a degree that the commission of one offense will result in the commission of the other. If the offenses are not allied offenses of similar import, the inquiry is concluded. If the offenses are found to be allied offenses of similar import, then the second step of the inquiry must be undertaken and this constitutes a review of the evidence and a determination made as to whether the offenses were committed separately or with a separate animus as to each. If the offenses were so committed, they cannot be allied offenses and the defendant may be convicted of all of them. If, however, the offenses were committed together with a single animus, they are allied offenses and only one conviction can result.
In the case at bar, appellant was indicted for the offenses of gross sexual imposition and kidnapping. Gross sexual imposition is defined, in relevant part, by R. C.
"(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons, to have sexual contact when any of thefollowing apply:
"(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
"* * *
"(3) The other person, or one of the other persons, is lessthan thirteen years of age, whether or not the offender knows theage of such person.
"(B) Whoever violates this section is guilty of gross sexual imposition. Violation of division (A)(1) or (2) of this section is a felony of the fourth degree. Violation of division (A)(3) of this section is a felony of the third degree." (Emphasis added.)
The above statute indicates that "force or threat of force" is not a necessary element for the crime of gross sexual imposition when the victim of the sexual contact is less than thirteen years of age. No restraint or removal of the victim is necessary. Even if the victim is a consenting, willing participant in the sexual contact with the defendant, the offense is complete if there is sexual contact and the victim is under thirteen years of age. Proof of conduct involving force is irrelevant *27 where a defendant is indicted for mere sexual contact with a victim less than thirteen years of age.
Kidnapping is defined, in relevant part, by R. C.
"(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the placewhere he is found or restrain him of his liberty, for any of the following purposes:
"(1) To hold for ransom, or as a shield or hostage;
"(2) To facilitate the commission of any felony or flight thereafter;
"(3) To terrorize, or to inflict serious physical harm on the victim or another;
"(4) To engage in sexual activity, as defined in section
"* * *
"(C) Whoever violates this section is guilty of kidnapping, a felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is a felony of the second degree."1 (Emphasis added.)
The above statute indicates that kidnapping requires removalof the victim or restraint of the victim's liberty for any of the illegal purposes outlined in R. C.
Where the offender's purpose is to engage in sexual activity, it must be against the victim's will. Any evidence of force, restraint, or removal of the victim for the purpose of engaging in sexual activity against the victim's will is relevant for the proof of kidnapping but irrelevant as to charges of gross sexual imposition with a victim under 13 years of age. Thus, kidnapping as defined by R. C.
In his second assignment of error, appellant again raises the allied offense issue with respect to the three counts of gross sexual imposition. In the case at bar, the victim testified to three separate acts of sexual contact including appellant's act of placing his finger between the victim's legs; appellant's act of putting his hand upon the victim's chest; and appellant's act of putting his tongue between the victim's legs. See R. C.
These acts did not occur at the same time. They occurred consecutively, according to the victim.2 Thus, these offenses constituted offenses of "similar kind committed separately" within the terms of R. C.
In his final assignment of error, appellant argues that the judgment against appellant was against the manifest weight of the evidence. His argument focuses on the limited age and mental capacity of the complaining witness. In fact, the child testified only after a careful and comprehensive voir dire
examination by the court which demonstrated her competency to testify. The child testified in detail to actions by appellant which fulfilled the necessary elements of one count of kidnapping and three counts of gross sexual imposition. The testimony supplied sufficient evidence to sustain a conviction for these offenses. The trial court was correct in refusing to *29
grant a motion for a judgment of acquittal. It was the jury's duty to evaluate all of the evidence and to determine whether the complaining witness was to be believed. In the case of State v.Eley (1978),
"A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt."
The record discloses that there was such substantial evidence introduced by the state for the jury's consideration to establish each and every element of the offenses charged. The evidence was legally sufficient to enable a jury of reasonable persons to find appellant guilty beyond a reasonable doubt. The assignment of error is not well taken.
The judgment is affirmed.
Judgment affirmed.
PRYATEL and KRUPANSKY, JJ., concur.