2004 Ohio 3052 | Ohio Ct. App. | 2004
{¶ 2} Appellant was originally indicted under Case No. 02-CR-554. That indictment remained pending until a new indictment under the present case was filed on April 9, 2003.
{¶ 3} On Sunday, August 18, 2002, twenty year old Anna Adkins and seventeen year old Ashley Gaines decided to drive from Shelby, Ohio, to Mansfield, Ohio, to make contact with an ex-boyfriend of Ms. Gaines.
{¶ 4} Sometime around 8:00 p.m., Ms. Adkins drove her 1994 Ford Escort to a gas station so that Ms. Gaines could call her ex-boyfriend from the pay telephone. While on the telephone, the appellant drove his 1995 Dodge Intrepid near the pay phone and began to make small talk with Ms. Gaines. Her convinced Ms. Adkins and Ms. Gaines to follow him to 372 Bell Street, Mansfield, Ohio, in order to become better acquainted. Ms. Adkins parked her car directly in front of the residence.
{¶ 5} The group drank beer and visited while at the residence.
{¶ 6} The group left the residence on Bell Street to go to George Keeton's house located on Seminole Avenue, Mansfield, Ohio. Mr. Keeton is a co-defendant of the appellant. Appellant drove the girls in his 1995 Dodge Intrepid to Keeton's residence.
{¶ 7} At the residence, the girls met George Keeton, Jason Flannery, Sonny Flannery, and John Lykins. Consequently, Ms. Adkins, Ms. Gaines, appellant, Jason Flannery, George Keeton and another person left the residence in a large white van. The party decided to travel to a club called "Fantasy Land" located in Bucyrus, Ohio. A stop was made at a Speedway gas station to purchase some pop to mix with Everclear, a highly potent alcoholic beverage. Keeton paid everyone's ten dollar cover charge, purchased a V.I.P. lap dance, and bought all the non-alcoholic beverages while at the club.
{¶ 8} Sonny Flannery then drove everyone back to Mansfield where he stopped his vehicle at the Speedway located at Route 30 and Timble Road. John Lykins and Sonny Flannery left in Mr. Flannery's van. The appellant George Keeton, Jason, Flannery, Ms. Adkins, and Ms. Gaines continued to party. Mr. Keeton became upset about some missing money and drugs while at the gas station. After he calmed down, the five individuals agreed they would take a ride out into the country. Mr. Keeton once again became upset about his missing money and drugs. He turned to the girls in the backseat and began yelling at them that he was thug and he was going to kill them both, he would never get caught, and their bodies would be dumped in a lake where no one would ever find them.
{¶ 9} The girls were pleading for their lives. Ms. Adkins attempted to exit the motor vehicle as it was approaching a stop sign. Mr. Keeton told the appellant to speed up the vehicle. The appellant sped up the vehicle causing the car door to hit Ms. Adkins' leg. The car, with the doors now locked by appellant, then proceeded to drive without stopping at any of the stop signs. At one point, Ms. Adkins and Ms. Gaines were allowed to get out of the car. They went to a home, knocked on a door, but there was no response. The appellant's car circled around and located the girls. The appellant and Mr. Keeton assured the girls that he had now calmed down. Ms. Adkins and Ms. Gainer did not know where they were at this time. They decided to get back into the vehicle to allow the appellant to take them back to their car which was still located at the Bell Street residence. A short while later, Mr. Keeton again began complaining about his missing money and drugs. He told Ms. Adkins and Ms. Gaines to take off their clothes because he wanted to check for his missing money. Mr. Keeton tossed the girls clothing and a book bag belonging to Ms. Gaines out of the car. Some of the clothing was later found in Richland County, Ohio, by a deputy sheriff.
{¶ 10} Keeton and Jason Flannery started punching the girls with closed fists, throwing approximately twelve blows, striking each girl approximately six times each in their faces. Appellant turned off the car's interior lights and the headlights. Keeton then forced the girls to perform various sexual acts. Keeton and Flannery inserted their fingers inside Ms. Adkins' vagina. Appellant continued to drive the care. Mr. Keeton told the appellant to stop the car so that they could toss Ms. Adkins out onto the street. The appellant complied with this request. Jason Flannery held Ms. Gaines by her hair to prevent her from escaping from the vehicle.
{¶ 11} Mr. Keeton then forced Ms. Gaines to perform fellatio upon him. Mr. Flannery who was in the back seat, began inserting his fingers inside of Ms. Gaines' vagina and anus.
{¶ 12} Keeton then ordered Ms. Gaines to have oral sex with appellant and Flannery. While still driving his car, the appellant voluntarily opened up his pants and made his penis available for Ms. Gaines. Keeton forced Ms. Gaines to perform fellatio upon appellant and upon Jason Flannery. While this was occurring, Keeton inserted his fingers inside Ms. Gaines' vagina and anus.
{¶ 13} Approximately forty-five minutes after Ms. Adkins was let go, Keeton told the appellant to stop the car and Jason Flannery kicked Ms. Gaines out on to the street.
{¶ 14} Appellant then drove Keeton and Flannery back to 372 Bell Street, Mansfield, Ohio, where Ms. Adkins had left her car. Keeton and Flannery broke a window and moved the car down the street.
{¶ 15} A short time later, the appellant and Mr. Flannery were arrested by the Mansfield Police Department. The appellant was stopped for having an obstructed license plate. His car also matched a description put out in a police bulletin from Ashland County about a possible abduction.
{¶ 16} A jury found the appellant guilty of aiding and abetting the kidnapping of Ashley Gaines, three counts of aiding and abetting rape, one count of aiding and abetting tampering with evidence. The jury found the appellant not guilty of aiding and abetting the kidnapping of Anna Adkins, however, the jury found him guilty of the lesser offense of unlawful restraint. The jury further found appellant not guilty of aiding and abetting the felonious assault of Anna Adkins, however, the jury found him guilty of the lesser offense of assault.
{¶ 17} On May 28, 2002, the defendant was sentenced to a term of eight years on each count of rape. Those sentences were to run concurrent. He was sentenced to a term of eight years for aiding and abetting kidnapping. That sentence was made consecutive to the trial court's sentence on the aiding and abetting rape charges. On the aiding and abetting tampering with evidence, the court sentenced appellant to a two year consecutive term. The court sentenced the appellant to a six-month term on the aiding and abetting assault and a sixty-day term on the unlawful restraint. Both misdemeanor sentences were to run concurrent with the felony sentences. Appellant was also determined to be a sexual predator.
{¶ 18} Appellant timely appealed and herein raises the following seventeen assignments of error for our consideration:
{¶ 19} "Defendant was denied due process of law when his motion to dismiss was denied.
{¶ 20} "Defendant was denied due process of law when the court overruled defendant's motion to suppress.
{¶ 21} "Defendant was denied due process of law when the court overruled his motion to suppress intercepted phone conversations.
{¶ 22} "Defendant was denied due process of law when the court permitted witnesses to state their opinions as to the truth and veracity of the claims made by ashley gaines and/or Anna Adkins.
{¶ 23} "Defendant was denied due process of law when the court admitted an unauthenticated letter.
{¶ 24} "Defendant was denied due process of law when the court permitted experimental evidence.
{¶ 25} "Defendant was denied due process of law when the court permitted reports of witnesses to be submitted after the witnesses had testified to the matters contained in those reports.
{¶ 26} "Defendant was denied due process of law and a fair trial by reason of improper prosecutorial argument.
{¶ 27} "Defendant was denied due process of law when the court answered a jury question without notifying counsel and making a record in open court.
{¶ 28} "Defendant was denied due process of law when the court refused to incorporate defendant's special jury instructions into its general charge.
{¶ 29} "Defendant was denied due process of law when the court refused to instruct on the lesser offense of gross sexual imposition.
{¶ 30} "Defendant was denied due process of law when no element of the offense was committed within richland county.
{¶ 31} "Defendant was denied due process of law when he was convicted as an aider and abettor.
{¶ 32} "Defendant was denied due process of law when he was convicted of tampering with evidence.
{¶ 33} "Defendant was denied due process of law and subjected to multiple punishments in violation of his constitutional rights when the court failed to merge kidnapping and rape convictions.
{¶ 34} "Defendant was denied due process of law when the court failed to sentence defendant to a minimum sentence and improperly imposed consecutive sentences.
{¶ 35} "Defendant was denied due process of law when he was adjudicated to be a sexual predator."
{¶ 37} A defendant's right to a speedy trial is a fundamental right guaranteed by the
{¶ 38} The statutory provisions guaranteeing an accused's right to be tried without inordinate delay are found in R.C.
{¶ 39} "(C) A person against whom a charge of felony is pending:" * * * "(2) Shall be brought to trial within two hundred seventy days after his arrest." * * *
{¶ 40} "(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * *" {¶ 41} Appellant specifically contends dismissal of the indictment in the case sub judice was required on the grounds that he was not brought to trial within ninety days under the "triple-count" provision of R.C.
{¶ 42} In State v. Brown (1992),
{¶ 43} Appellant's First Assignment of Error is overruled.
{¶ 45} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),
{¶ 46} A police stop of a motor vehicle is a significant intrusion requiring justification as a "seizure" within the meaning of the
{¶ 47} Two reasons were cited for the initial stop of appellant's vehicle. The officer testified that the license plate on the vehicle was obstructed. (Transcript, Suppressing Hearing, March 24, 2003 at 5). [Hereinafter "ST."]. The second reason for the stop was based upon a police radio bulletin issued from Ashland County concerning a possible abduction. (Id. at 4). The information originating from Ashland County came from one of the victims of the crime. Appellant's car matched the description of the vehicle in the radio bulletin. The radio broadcast further described the occupants of the vehicle as two white males, one with a bulldog tattoo. (Id. at 9). The officer further indicated that before making the stop further bulletins named the appellant as a suspect in the Ashland County crime. (Id.).
{¶ 48} In United States v. Hensley (1985),
{¶ 49} R.C.
{¶ 50} "Where a police officer has received information over the police radio and that information is such as to give the officer reasonable grounds to believe a felony has been committed, such officer has probable cause to make an arrest."State v. Fultz (1968),
{¶ 51} In the case at bar, the officer was justified in stopping appellant's vehicle to investigate the traffic violation. The officer was further justified in her reliance upon the police bulletin in conducting a Terry stop and investigation. Further, the officer was authorized to arrest appellant when the information obtained during the stop revealed that the appellant's car matched the description given by the victim, the crime alleged to have occurred was a felony abduction, the appellant's name matched the name given in the police bulletin, and the descriptions of the suspects were also verified. Under the facts available to the officer, reasonable grounds to believe a felony had been committed were present at the time of the arrest. The search of the vehicle was valid as the officer was permitted to take such steps as were necessary to protect her personal safety, including a limited search of the passenger compartment of appellant's vehicle for weapons.Michigan v. Long (1983),
{¶ 52} Accordingly, we overrule appellant's second assignment of error.
{¶ 54} The conversations at issue were between the appellant and members of his family. The conversations were recorded while appellant was incarcerated in the Richland County Jail.
{¶ 55} The jail utilizes an "Evercom" recording system. (T. at 928). This system clearly informs both parties to a telephone conversation that the call is originating from the jail, and further that the call is subject to monitoring and recording. (Id. at 928-29).
{¶ 56} Monitoring and recording telephone conversations are a search within the meaning of the
{¶ 57} "In order for a party to succeed in challenging a search on
{¶ 58} "These courts have upheld the practice on one of two independent grounds. Some courts have held that when placed on notice of telephone monitoring, a prisoner does not have the requisite subjective expectation of privacy to incur a
{¶ 59} "We agree with both views and accordingly hold (1) that where a prisoner has notice of a telephone monitoring practice and elects to place a telephone call, he has no subjective expectation of privacy and (2) that a jail or prison is permitted under the
{¶ 60} Appellant's third assignment of error is overruled.
{¶ 62} We have previously found this type of testimony is permissible. State v. Bragg (April 15, 2004), 5th Dist. No. 2003-CA-00065; State v. Crum (Oct. 26, 1998), 5th Dist. No. 97-CA-0134.
{¶ 63} Appellant further argues that the trial court erred by permitting the investigating police officer to testify that the statement he had taken from Ms. Adkins was consistent with an earlier interview.
{¶ 64} The detective conducted an initial interview with Ms. Adkins that was not tape recorded. Over a week later he interviewed her and this time made a recording of the interview. The testimony objected to by appellant was that the second statement was consistent with the first statement (T. at 910). The officer was testifying to a fact, not expressing an opinion about the credibility or veracity of the complainant. The appellant's argument is without merit.
{¶ 65} Appellant's fourth assignment of error is overruled.
{¶ 67} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage
(1987),
{¶ 68} The basis for appellant's objection is that the letter was not signed in his name, nor was any handwriting analysis comparison submitted to establish that he wrote the letter.
{¶ 69} In United States v. Reilly (3rd Cir. 1994),
{¶ 70} In the case at bar, State's Exhibit 21 is a letter addressed to one of appellant's co-defendants, George Keeton. (T. at 726). The letter was discovered by corrections officers during a surprise search for contraband conducted at the jail. (T. at 741). The letter was signed "Lil Bro." (T. at 746). The letter detailed a plan to have all co-defendants testify to a story that any sexual contact with the victims was consensual. (T. at 746-53). The victims in this case testified that the sexual assaults occurred in appellant's car. (T. at 320-326).
{¶ 71} The letter specifically mentions the name "Keisha" (T. at 746). Appellant's sister is named "Keisha." (T at 930; 975). The letter specifically mentions "my car." (T. at 747; 749; 752). It is written from the perspective of the person driving the car. (Id.). Many of the facts stated in the letter mirror the sequence of events testified to by the victims. The letter mentions the other co-defendants by name. (T. at 747). The letter mentions that "John Boy and Sonny" left and "me, you and Jason and the girls still wanted to get drunk . . . so we get into my car. . . ." (T. at 749). A correction officer from the jail testified that several times she overhead inmates referring to appellant as "Lil Bro." (T. at 744-45).
{¶ 72} ". . . [T]he showing of authenticity is not on a par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic, United States v. Natale,
{¶ 73} We find that there was sufficient evidence to allow the State's Exhibit 21 to be admitted into evidence. We further find that the record contains substantial evidence from which the jury could infer that the letter was written by appellant. The appellant had a full opportunity to cross-examine the corrections officer and to challenge his authorship of the letter. The trial court did not abuse its discretion in admitting the letter into evidence.
{¶ 74} Appellant's fifth assignment of error is overruled.
{¶ 76} The admission or rejection of evidence concerning out-of-court experiments is a matter peculiarly within the discretion of the trial court, and reviewing courts will not interfere absent an abuse of discretion. Columbus v. Taylor
(1988),
{¶ 77} In the case at bar the trips made by the officer were substantially similar to the trip that the appellant allegedly made on the night of the attack. Any dissimilarity in conditions goes to the weight, not the admissibility, of the evidence.State v. McFadden (1982),
{¶ 78} We find the trial court did not abuse its discretion by permitting the officer's testimony. Appellant's sixth assignment of error is overruled.
{¶ 80} The reports admitted at trial concern D.N.A. testing performed on evidence gathered in the case, and a "presumptive blood test". (T. at 822; 1059; 822). The individuals who performed each test were present in court and subject to cross-examination.
{¶ 81} "The best explanation and gathering of authorities on the issue of the admission of laboratory reports are two law review articles written by Professor Paul C. Giannelli of Case Western Reserve University Law School. See Giannelli, TheAdmissibility of Laboratory Reports in Criminal Trials: TheReliability of Scientific Proof,
{¶ 82} "Professor Giannelli summarizes the history of admissibility of laboratory reports in the following manner:
{¶ 83} "Laboratory reports are typically offered in evidence as either business records or public records, both of which are recognized exceptions to the hearsay rule." State v. Crow
(1999),
{¶ 84} The reason for precluding the admission of laboratory reports into evidence at trial as self-authenticating, or upon the authentication of a record custodian is a concern that an accused's right to confront and cross-examine will be compromised. Those concerns do not exist in this case. The appellant had the opportunity to confront and cross-exam the individuals who prepared the reports. See, State v. Manke (N.D. 1982),
{¶ 85} The appellant's reliance on State v. Welling (Nov. 18, 1985), 12th Dist. No. CA85-07-079 is misleading. TheWelling case concerned the admission of prior testimony, not reports. In State v. Hubbard (2002),
{¶ 86} None of the factors present in Welling are even presented in this case.
{¶ 87} The remaining items of evidence to which appellant objected to at trial were the letters referred to in Assignment of Error V and his tape recorded telephone conversations referred to in Assignment of Error III. The admissibility of those items has previously been addressed.
{¶ 88} We find no abuse of discretion by the trial court in the admission of the reports into evidence.
{¶ 89} Appellant's seventh assignment of error is overruled.
{¶ 91} A prosecutor is entitled to a certain degree of latitude in closing arguments. State v. Liberatore (1982),
{¶ 92} In his brief the following statements are specified as being improper:
{¶ 93} 1). "there has been absolutely no words out of the mouth of Richard Myers, or anyone else, that Richard Myers was threatened in any way to do what he did on that night" (T. at 1156-57).
{¶ 94} 2). "there is absolutely no believable evidence to the contrary to what they said" (T. at 1153).
{¶ 95} 3). "Richard Myers is guilty beyond a reasonable doubt . . . of each and every on of these nine offenses. (T. at 1151).
{¶ 96} 4). "Richard Myers is guilty, beyond a reasonable doubt, of every one of the nine crimes he is charged with here. (T. at 1157).
{¶ 97} 5). "In order to find Richard Myers not guilty of these horrible crimes, you must find that Anna Adkins and Ashley Gaines came to this court, took an oath to tell the truth, sat in that witnesses box, and lied to you. . . . It is clearly impossible to find Richard Myers not guilty of these horrible crimes unless you find that Anna and Ashley are total and complete bold-face liars." (T. at 1152).
{¶ 98} 6). "Justice requires you to find Richard Myers guilty of two kidnappings, four rapes, two felonious assaults and tampering with evidence." (T. at 1162).
{¶ 99} The state may comment upon a defendant's failure to offer evidence in support of its case. State v. Collins (2000),
{¶ 100} The appellant in the case at bar mischaracterizes the prosecutor's statements. Although the appellant did not testify, the State did admit several recorded telephone conversations between the appellant and family members. (See Assignment of Error III, supra). The State further admitted into evidence at trial an oral statement made by the appellant to the police. (T. at 775-81).
{¶ 101} When taken in context, it is clear that the prosecutor was referring to the fact that in all the statement made by the appellant there is no mention of his being threatened, intimidated or coerced into taking any action or refraining from acting on the night in question. (T. at 1156-1157). Accordingly, the prosecutor was commenting on the lack of evidence and not on the fact that appellant had not testified. Further, the jury was instructed that they were not to consider the fact that appellant did not testify at trial. (T. at 1192).
{¶ 102} None of the instances raised by appellant rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Appellant was not convicted as charged in the indictment. The appellant was found not guilty of aiding and abetting the kidnapping of Anna Adkins. (T. at 1244). He was found not guilty of the rape of Ashley Gaines, although he was found guilty of aiding and abetting in her rape. (T. at 1244-45). The jury found the appellant guilty of two lesser offenses. (T. at 1245-46). Clearly, the jury was not swayed or influenced by the prosecutor's statements.
{¶ 103} Appellant's eighth assignment of error is overruled.
{¶ 105} Appellant does not argue in his brief that the instruction given by the trial court was incorrect or misleading, only that he was not present during the communication. Counsel was notified immediately that the trial judge, in answer to a question from the jury, instructed the jury that the term "indirect" means "implied". (Id.). Appellant would simply have requested that the judge tell the jurors that they have been given the definition of "indirect" and no further definition would be given. (Id.). The court disagreed and noted that the definition of "indirect" had not previously been given. (Id.). The trial judge's response indicates that even if counsel had been present, he would have proceeded as he did with the answer. (T. at 1226-1227).
{¶ 106} In United States v. Gagnon,
{¶ 107} In United States v. Giacalone (6th Cir. 1978),
{¶ 108} We find that no reasonable possibility of prejudice occurred under the facts of this case.
{¶ 109} Appellant's ninth assignment of error is overruled.
{¶ 111} Duress is an affirmative defense. State v. Getsy
(1998),
{¶ 112} "One of the essential features of the defense of duress is a sense of immediate, imminent death, or serious bodily injury if the actor does not commit the act as instructed. SeeState v. Cross (1979),
{¶ 113} It is within the trial court's sound discretion to determine whether the evidence presented at trial is sufficient to require a particular jury instruction. State v. Mitts
(1998),
{¶ 114} Applying this standard it is apparent that the appellant failed to show that his criminal conduct occurred as a result of a continuous threat from George Keeton, or anyone else, which, because of his fear of bodily harm or death, controlled his will and compelled him to drive the car, expose his penis, turn the car lights off to avoid detection, accelerate the vehicle to prevent the escape of the victims, drive the co-defendants to where the victims' car was located, and to entice the victims to enter the car and become acquainted with Keeton and the others. The meager evidence cited to by appellant does not rise to the level of "a sense of imminent, immediate and impending death or serious bodily injury." Cross,
{¶ 115} Appellant did not satisfy his burden of presenting evidence of a nature and quality sufficient to raise the defense of duress and merit an instruction. Therefore, the trial court did not err in failing to instruct on the affirmative defense of duress.
{¶ 116} Generally, a criminal defendant has aided or abetted an offense if he has supported, assisted, encouraged, cooperated with, advised, or incited another person to commit the offense. See State v. Johnson (2001),
{¶ 117} Appellant was not a mere bystander who was along for the ride. Appellant drove the car. Appellant actions previously detailed indicate that he was not "merely associated" with the other co-defendants. His presence during the attacks, coupled with his conduct both before and after the attacks were committed, were enough to merit the trial court's refusal to instruct the jury on the "mere presence" defense.
{¶ 118} Appellant's tenth assignment of error is overruled.
{¶ 120} A charge on a "lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." State v. Thomas,
{¶ 121} Gross sexual imposition, R.C.
{¶ 122} "Sexual conduct" with another is an element of rape, whereas only "sexual contact" is required to prove gross sexual imposition. R.C.
{¶ 123} The trial court was correct to refuse appellant's request for a jury instruction on Gross Sexual Imposition because the evidence established that there was penetration. (T. at 456-460; 943-44; 960; 982-83; 985).
{¶ 124} Based on the foregoing, we find that the lesser included offense of gross sexual imposition was not reasonably supported by the evidence, and the trial court did not err by refusing to give this instruction.
{¶ 125} Appellant's eleventh assignment of error is overruled.
{¶ 127} In State v. Beuke (1988),
{¶ 128} Additionally, the crimes occurred in a moving vehicle. R.C.
{¶ 129} There is no dispute that the appellant's car traveled through Richland and Ashland counties. The jury instruction given by the trial court was a correct statement of the law.
{¶ 130} Appellant's twelfth assignment of error is overruled.
{¶ 132} This argument has previously been addressed in Assignment of Error X, supra. For the reasons stated therein appellant's thirteenth assignment of error is overruled.
{¶ 134} The appellant was not convicted of tampering with evidence. Appellant was convicted of aiding and abetting tampering with evidence. (T. at 1245).
{¶ 135} R.C.
{¶ 136} Appellant informed the co-defendant's of the location of the victims' car. (T. at 946). Appellant drove the co-defendants back to the location where the victims had parked their car. (Id.). Appellant was aware that the co-defendants were going to move the victims' car. (Id.). He waited for the co-defendants to move the car. (Id. at 962). Further, State's Exhibit 21 refers to appellant's active participation in moving the vehicle. (T. at 752).
{¶ 137} The jury had sufficient evidence to conclude that appellant had aided and abetted the co-defendants, if not directly participating in the tampering of evidence. See, Statev. Jones (Nov. 10, 2003), 10th Dist. No. 02AP-1390,
{¶ 138} Appellant's fourteenth assignment of error is overruled.
{¶ 140} In State v. Brown (1984),
{¶ 141} `In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C.
{¶ 142} `(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; * * *.'
{¶ 143} Thus, the general rule is that where the kidnapping offense and underlying similar offense are committed separately and with a separate, different animus, convictions for both offenses will be sustained. See, also, State v. Price (1979),
{¶ 144} The question becomes whether appellant possessed an animus in committing the rape offense separate from the kidnapping offense.
{¶ 145} Applying the standard set forth in Logan, supra, the facts of the instant case clearly indicate that the kidnapping committed by appellant was not "merely incidental" to the rape charge.
{¶ 146} George Keeton began making threats to the lives of the victims. (T. at 254-57; 433-444). The victims began to plead for their lives. (T. at 441). Anna Adkins attempted to exit the car as it approached a stop sign. (T. at 261-63; 445). Appellant accelerated the car causing the door to hit the victim in the leg. (Id.). The car was speeding through stop signs with the doors now locked. (Id.). Under these circumstances, a separate animus necessary to sustain a conviction for rape and kidnapping was present. It was not error for the trial court to sentence the appellant separately for the rape and kidnapping charges.
{¶ 147} Appellant's fifteenth assignment of error is overruled.
{¶ 149} Appellant did not receive the maximum sentence for any one offense. Appellant was sentenced for three (3) counts of aiding and abetting Rape to a term of eight (8) years on each count. Those sentences are concurrent. He was sentenced to a term of eight (8) years for aiding and abetting kidnapping. This count is consecutive to the sentences for the three rape charges. On the aiding and abetting Tampering with Evidence the court sentenced appellant to a two year term. This sentence is also consecutive to the other sentences. The misdemeanor sentences were made concurrent with the felony convictions. Accordingly appellant received an aggregate sentence of eighteen years.
{¶ 150} Revised Code
{¶ 151} Revised Code
{¶ 152} In order to impose consecutive sentences, a trial court must comply with R.C.
{¶ 153} "(a) The offender committed one or more multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to Sections
{¶ 154} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 155} "(c) The offender's history of criminal conduct demonstrates the consecutive sentences are necessary to protect the public from future crimes by the offender."
{¶ 156} Revised Code
{¶ 157} In State v. Comer,
{¶ 158} The import of the decision in Comer, supra, is that the trial court must explain its decision to impose consecutive sentences to a defendant and base its decision on the statutorily enumerated criteria.
{¶ 159} In the case at bar, the trial court stated at sentencing, contrary to appellant's assertions, that a Pre-sentence report was prepared in this case. (Sent. T., May 28, 2003 at 16). The Appellant was on felony probation at the time of this offense. (Id. at 7). The Court found that as a juvenile appellant violated his probation on six different occasions. (Id. at 14). The court further found that "the harm in these cases was great or unusual because of the brutal nature of the crime and because of the multiple victims involved in it." (Id. at 12). The court noted that the two victims were sexually assaulted, beaten, throw out of the car naked and in an unfamiliar location. (Id. at 10; 14-15). Both victims are being treated for Post Traumatic Stress Disorder. (Id. at 15). The trial court found that nonconsecutive prison terms do not adequately reflect the seriousness of appellant's conduct. (Id. at 12-13). Further appellant's criminal history shows that consecutive sentences are necessary to protect the public. (Id. at 13). The court detailed its reasons for imposing consecutive sentences at the sentencing hearing.
{¶ 160} A through review of the sentencing hearing reveals that the trial court complied in all respects with Comer,supra, and R.C.
{¶ 161} Appellant's sixteenth assignment of error is overruled.
{¶ 163} In State v. Cook,
{¶ 164} Revised Code §
{¶ 165} "(3) In making a determination . . . as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following:
{¶ 166} "(a) The offender's or delinquent child's age;
{¶ 167} "(b) The offender's or delinquent child's prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses;
{¶ 168} "(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made;
{¶ 169} "(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims;
{¶ 170} "(e) Whether the offender or delinquent child used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;
{¶ 171} "(f) If the offender or delinquent child previously has been convicted of or pleaded guilty to, or been adjudicated a delinquent child for committing an act that if committed by an adult would be, a criminal offense, whether the offender or delinquent child completed any sentence or dispositional order imposed for the prior offense or act and, if the prior offense or act was a sex offense or a sexually oriented offense, whether the offender or delinquent child participated in available programs for sexual offenders;
{¶ 172} "(g) Any mental illness or mental disability of the offender or delinquent child;
{¶ 173} "(h) The nature of the offender's or delinquent child's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;
{¶ 174} "(i) Whether the offender or delinquent child, during the commission of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made, displayed cruelty or made one or more threats of cruelty;
{¶ 175} "(j) Any additional behavioral characteristics that contribute to the offender's or delinquent child's conduct."
{¶ 176} The trial court shall determine an offender to be a sexual predator only if the evidence presented convinces the trial court by clear and convincing evidence. R.C. §
{¶ 177} The appellant did not present any expert testimony or evidence at the sentencing hearing. Nor did appellant's counsel request a continuance to prepare for the hearing.
{¶ 178} The trial court noted that one of the victims was seventeen years old. (Sent. T. at 16). R.C.
{¶ 179} We find clear and convincing evidence in the record to support the trial court's classification of Appellant as a sexual predator. State v. Nyel, 1st Dist. No. C-020640, 2003-Ohio-4961.
{¶ 180} Appellant's seventeenth assignment of error is overruled.
{¶ 181} For the foregoing reasons, the judgment of the Richland County Court of Common Pleas is hereby affirmed.
By Gwin, P.J., Wise, J., and Edwards, concur.
{¶ 182} For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Richland County Court of Common Pleas is hereby affirmed. Costs to appellant.
