STATE OF OHIO, Plaintiff-Appellee, v. JOHN ANTHONY THOMAS, SR., Defendant-Appellant.
Case No. 17 BE 0028
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY
September 17, 2018
[Cite as State v. Thomas, 2018-Ohio-3768.]
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio, Case No. 16-CR-268
JUDGMENT:
Affirmed.
Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. J. Kevin Flanagan, Assistant Prosecuting Attorney 147-A West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee
Atty. Edward Lee Gillison, Jr., Gillison & Gillison Law Offices, 3139 West Street, Weirton, West Virginia 26062-4636, for Defendant-Appellant.
WAITE, J.
Facts and Procedural History
{¶2} Appellant‘s wife of 28 years, Jaqueline “Jackie” Thomas (“Mrs. Thomas“), testified that between five and six o‘clock on the morning of July 13, 2016, she was awakened by Appellant, profanely demanding she get out of bed. (Tr., pp. 384-385.) Mrs. Thomas testified that Appellant grabbed her by the arm and the hair of her head, causing her to stand and forcibly follow him to the bathroom so that their sleeping grandchild, who remained in the bed, would not be awakened. (Tr., pp. 385-386.)
{¶3} Mrs. Thomas testified that once in the bathroom, Appellant held her by her arms, complaining that he believed she wanted a divorce. When he then grabbed her by the throat, she told him that he was hurting her. (Tr., p. 386.) Mrs. Thomas testified that Appellant used his non-dominant hand to punch her across the face, causing her nose to bleed and her teeth to hit the inside of her mouth, before holding her by the hair and slapping her across the face multiple times. (Tr., pp. 386-387.) She testified that after she was slapped she told Appellant to stop and that he was hurting her but that this caused Appellant to use his non-dominant hand to hold her by her hair and use his dominant hand to choke her while saying, “[y]ou want a divorce. You‘re going to leave me. I‘ll kill you. You won‘t leave me. No one else will have you. You‘ll suffer.” (Tr., p.
{¶4} Mrs. Thomas testified that Appellant put her head in “scalding” and burning hot water. (Tr., p. 388.) She testified that she was able to unpin her arm from the side of the tub, push up and cry for help. However, Appellant slammed her head into the side of the tub, leaned on her until she slid into the tub, and proceeded to choke her from the back of her neck while holding her under the water by her hair. (Tr., pp. 388-389.) Mrs. Thomas testified that while Appellant continued choking her she attempted to pull the drain to the tub, believing she was going to die, prior to blacking out. (Tr., p. 389.)
{¶5} Appellant was issued an indictment on July 13, 2016, by a Grand Jury in Belmont County consisting of five charges: two alternative charges of kidnapping in violation of
{¶6} A jury trial was held on May 4, 2017. Appellant was found guilty on both counts of kidnapping in violation of
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL OR IMPOSING A SANCTION WHERE THE STATE FAILED TO PROVIDE WRITTEN SUMMARES [SIC] OF ORAL STATEMENTS MADE BY MR. THOMAS THAT WERE REQUESTED IN HIS DEMAND FOR DISCOVERY.
{¶7} Appellant argues that the trial court failed to grant a mistrial or impose a sanction when the prosecution elicited testimony from witnesses regarding statements made by Appellant, where these statements were not provided to the defense in its demand for discovery. We note that in his brief, Appellant cites to the wrong version of the criminal rule on which he relies.
{¶8} The correct version of
(1) Any written or recorded statement by the defendant or a co-defendant, including police summaries of such statements * * *
(5) Any evidence favorable to the defendant and material to guilt or punishment;
* * *
(7) Any written or recorded statement by a witness in the state‘s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
{¶9} The rule specifically refers to discoverable evidence that is written or recorded. Other courts have determined that, “[a] writing or recording is only a statement for purposes of Crim.R. 16 if the witness prepared, signed, or adopted the statement; or if it is a substantially verbatim recital of the witness‘s statement written in a continuous, narrative form.” State v. Scoggins, 4th Dist. No. 16CA3767, 2017-Ohio-8989, ¶ 38; State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 44; State v. Phillips, 4th Dist. Nos. 89-CA-32 & 89 CA-33, 1992 WL 42790, *5 (Mar. 5, 1992); State v. Johnson, 62 Ohio App.2d 31, 403 N.E.2d 1003 (6th Dist.1978), paragraph one of the syllabus; State v. Moore, 74 Ohio App.3d 334, 340, 598 N.E.2d 1224 (10th Dist.1991).
{¶10} Appellant argues that there were four different witness statements made at trial that were not disclosed after his demand for discovery, in violation of
{¶11} Appellant argues that these oral statements witnesses testified were made by him were discoverable evidence pursuant to
{¶12} Appellant argues that
{¶13} We have held that “Crim.R. 16 does not mandate the pretrial discovery of witness statements.” State v. McKinnon, 7th Dist. No. 09 CO 17, 2010-Ohio-2145, ¶ 16. The Sixth District further clarified that “[a]lthough the rule requires the state to disclose witnesses’ statements, it does not require the state to reduce interviews with potential witnesses to writing.” State v. Clark, 6th Dist. No. L-17-1044, 2018-Ohio-521, ¶ 38; State v. Jackson, 9th Dist. No. 27739, 2017-Ohio-278, ¶ 11, 81 N.E.3d 942. Moreover, a prosecutor‘s notes of his discussions with witnesses are protected under
{¶14} Even if we were to assume, arguendo, that the state‘s failure to disclose oral statements made by Appellant to witnesses is, in fact, a
{¶15} Appellant argues that nondisclosure was willful because the prosecutor knowingly elicited witness testimony in his case-in-chief that contained the testimony Appellant alleges were prejudicial. The state contends Appellant failed to demonstrate any willful conduct on the part of the prosecution. Moreover, as noted by the state, Appellant does not argue that the state failed to provide written witness statements during discovery, but that the witnesses’ live testimony at trial contained additional statements made by Appellant, and these could be seen as prejudicial. The state contends Appellant did not object to the statements at trial. A review of the transcripts reveals that while Appellant never objected to any of the four statements made by the four separate witnesses at the time they were made, he did raise an objection the next trial day.
{¶16} Regardless, Appellant‘s contention about the witnesses’ trial testimony is misplaced. As noted,
{¶17} Regarding Appellant‘s claim that the trial court abused its discretion in failing to impose a sanction, this argument is also meritless. “Imposition of discovery sanctions is discretionary, and we review the trial court‘s decision for an abuse of
{¶18}
The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
{¶19} This record shows the state did not run afoul of the discovery rules. The trial court here was correct in overruling the motion to dismiss and in permitting the statements to be heard through witness testimony. Even if the state had failed to turn over discoverable statements, the court was well within the realm of discretion in permitting the testimony because it falls within the broad discretion granted to the court under
{¶20} For the reasons set forth above Appellant‘s first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE STATE TO USE TEXT MESSAGES CONTAINED IN STATE‘S EXHIBIT 15A - 15L DURING CROSS-EXAMINATION.
{¶21} Appellant argues that the trial court committed prejudicial error in two separate, distinct arguments. The first involves text messages introduced at trial which Appellant argues were improperly admitted because they were not provided in the defense demand for discovery. The second is that Appellant was prejudiced because the text messages were admitted as prior bad acts evidence when the door had not been opened by the defense. The text messages at issue were sent to Appellant‘s wife prior to the attack and state the following: 1) “Fuck you very much. What you cut your own fucking throat.” (Tr., pp. 798-799); 2) “Don‘t care who you fuck. Die. You‘re a fucking whore. And I hate you bitches don‘t appreciate anything.” (Tr., p. 799); 3) “Want treated like a whore * * * [y]ou will suffer till I watch them throw—* * * Till I watch them throw the dirt in your face. Promise.” (Tr., p. 800); 4) “I can give any bitch a good life, stupid. I‘m going to cut your face off your head. I‘m waiting.” (Tr., p. 802); 5) “You have to come here sometime * * * [o]r would you rather for me to find you and kill you.” (Tr., p. 803); 6) “[F]uck you up that much worse. I will find you. Trust me.” (Tr., p. 803); 7) “You will come back and I will be waiting. I have patient [sic] cause your end result will be worth it. Nothing but time. And if you gave away anything of mine, you go to the ICU.” (Tr., p. 805); 8) “You better give me some burgers or something. Or I‘m going to rip your fucking scar long.” (Tr., pp. 805-806); and 9) “Watch your tongue if you like it in your mouth.” (Tr., p. 808.)
Texts During Discovery
{¶23} Again, whether to sanction for a discovery violation falls within the broad discretion of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20. When determining whether to impose a sanction the court should consider: (1) whether the nondisclosure was willful; (2) whether knowledge of the material beforehand would have benefited the accused in preparing for trial; and (3) whether the accused was prejudiced. Id. at ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), syllabus.
{¶24} The record reveals the state received these text messages from a lay witness the evening of Monday, May 1, 2017. (Tr., p. 166.) Both parties concede that the prosecution provided defense counsel with emailed copies of the text messages the morning of Wednesday, May 3, 2017, the day before trial. Following voir dire and prior to empaneling the jury on Thursday May 4, 2017, defense counsel moved to exclude the text messages under
{¶25} On Saturday, May 6, 2017 the defense called Appellant to testify on direct examination as its final witness. Based on Appellant‘s direct testimony, the state sought on cross-examination to admit the text messages into evidence. Appellant‘s counsel objected. The trial court overruled the objection and permitted the text messages to be admitted. Appellant‘s counsel raised numerous objections regarding the text message evidence, including: a motion to exclude; an objection on the grounds of hearsay; an objection regarding improper impeachment, arguing that the door had not been opened to allow for the admission of the text messages; and an objection based on
{¶26} The trial court overruled each of Appellant‘s objections. Defense counsel additionally made a motion to strike all of Appellant‘s responses to the state‘s questioning about the text messages on the basis that a document cannot be authenticated by verifying its contents. Counsel also raised a second objection that the texts were introduced as improper impeachment evidence of a hearsay declarant, which the trial court again overruled.
{¶27} To demonstrate an abuse of discretion, Appellant must first show that the prosecutor‘s nondisclosure of discoverable evidence was willful in violation of the rule. Parson, supra, at 445. Appellant‘s only argument in this regard is that the text messages were untimely disclosed; the messages were discovered on Monday evening and were not disclosed to defense counsel until Wednesday morning. “Willful” has
{¶28} In State v. Bandy, we held that when a prosecutor receives new evidence the day of trial and discloses that evidence to opposing counsel on that day, it is not a willful violation of
{¶29} In the instant matter, the state disclosed the new evidence within approximately one and one-half days of receiving the materials. While discovery and disclosure were both on the eve of trial, similar to Morris, these materials were disclosed the day prior to trial and were not actually used in trial until the final day of testimony, against the final witness on cross-examination. This occurred four days after the initial disclosure. Disclosure within days of receiving the discovery materials does not meet the definition of “willful.” Given that the evidence was disclosed within a day and a half of receiving the materials and that the evidence was not used until four days later on the final day of witness testimony, it is evident that the short period before disclosure occurred in this case does not rise to the level of a willful violation of the rule.
{¶30} Even if we were to view this period of time between receiving the evidence and its disclosure to defense counsel as a willful violation, Appellant must also show that having the information sooner would have benefited the defense in preparation for trial and that the failure to disclose resulted in prejudice. Appellant‘s sole argument in
{¶31} Appellant appears to argue that prejudice existed simply because the materials contained “damaging incriminating statements made by [Appellant].” (Appellant‘s Brf., p. 9.) Text messages sent from a defendant are “the party‘s own statements if the statements were properly authenticated.” State v. Shaw, 7th Dist. No. 12 MA 95, 2013-Ohio-5292, ¶ 42. Again, Appellant does not contest the authenticity of the text messages in question. Instead he argues that because his texts were obviously damaging, this introduction against him automatically resulted in prejudice. The fact that these messages were obviously damaging does not address any prejudice that may have been suffered simply by their tardy disclosure, the issue in this assignment. Appellant does not meet the burden in showing that prior knowledge would have benefited defense preparation. Appellant was clearly well aware of the existence of the text messages in question and did not ask for more time to prepare to address them if offered into evidence.
{¶32} Assuming Appellant met his burden of proving willfulness, beneficial foreknowledge, and prejudice, the trial court did not abuse its discretion by failing to impose a sanction or granting a motion to strike.
{¶33} Again, Appellant failed to ask for a continuance or other less stringent discovery sanction. Assuming a discovery violation had occurred, the court may have been justified in imposing a sanction, but courts are not bound to impose sanctions or grant motions to strike. A court also “may make such other order as it deems just under the circumstances.”
{¶34} Appellant does not meet the burden of proving willful nondisclosure, beneficial foreknowledge in preparing a defense, or prejudice from late disclosure of the evidence. Even if Appellant did meet this burden, the remedy imposed by the trial court would be adequate and within the scope of the discretion of the trial court.
Prior Bad Acts
{¶35} Appellant‘s second argument in this assignment of error is that the evidence should have been excluded because it was used by the state to prove prior bad acts. Appellant alleges here that the trial court permitted the state to use prior bad acts evidence contrary to
{¶37} The evidence here consisted of text messages between Appellant and his wife, Mrs. Thomas, which occurred approximately one week prior to the incident at issue. Again, defense counsel objected to the use of the text message evidence on numerous grounds, multiple times. Appellant‘s initial objection and request for an
{¶38} The state ultimately did seek to introduce the text message evidence in response to Appellant‘s testimony on direct examination that Appellant and his wife were on “good terms” prior to the incident. The messages were authenticated by Appellant on cross-examination. (Tr., pp. 788-791.) The messages amounted to conversations between Appellant and his wife in which Appellant made numerous threats, including that he would kill her. (Tr., pp. 798-806.)
{¶39} Appellant contends that the state introduced the text messages under
[Appellant‘s counsel] is correct that we did provide [the texts]. I received those not through law enforcement, but from lay witnesses on Monday
evening. We did provide them on Wednesday morning. I think that it may have -- without a doubt, they have been or they were provided late. So the State of Ohio, at this juncture, will ask the Court not to make a ruling until or unless we decide to use those – or, as evidence. At this point in time, we don‘t intend to do that.
(Tr., pp. 166-167.)
{¶40} Appellant complains that the prosecutor expressly stated prior to trial that it was not his intention to use the evidence at trial. At trial, the state requested the court for permission to use the evidence to impeach Appellant‘s testimony, arguing that Appellant opened the door to the text message evidence when he declared that he and his wife were on “good terms.” (Tr., p. 787.)
{¶41}
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
{¶42} The Ohio Supreme Court established a three-step analysis for considering “other acts” evidence:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Evid.R. 401 . The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated inEvid.R. 404(B) . The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. SeeEvid.R 403 .
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
{¶43} Appellant takes issue with the text messages being used during cross-examination to impeach one comment on direct examination: that he and his wife were on “good terms.” (Tr., p. 787.) This record shows that when asked on direct examination by his counsel whether he found it puzzling his wife would claim he was trying to kill her, Appellant responded, “I don‘t understand why * * * we was [sic] on such good terms, especially for these last two months. You know, we did things together. We had plans, like going to the lake together. Doing things together, just me and her, you know. Things that‘s special to me. It doesn‘t matter if we take a ride in a car. It‘s me and her.” (Tr., p. 751.) Appellant also testified:
I try to talk to her about it. Trying to make up, do things, special things. Sometimes, some days it works. Some days she says she‘s done, you know. That hurts, but I know that that‘s my fault. But you know, I‘m trying
to make up for it. I‘m trying to move on with my wife through this, you know. I am not perfect. I ain‘t claim to be a perfect husband or father.
(Tr., p. 749.)
{¶44} The state argues that although it initially did not intend to use the text messages, the text messages became relevant to demonstrate that Appellant was being untruthful. After objections and multiple bench conferences, the trial court ultimately permitted the state to question Appellant about the texts. The text messages clearly contradicted Appellant‘s assertion that he and his wife were on good terms in their marriage. As the theory proposed by the state in using the texts was that Appellant was not being truthful in his characterization of his relationship with the victim, this record reflects that he opened the door to introduction of the text messages which were sent by Appellant approximately a week prior to the offense. The relevance of the texts is patently clear as they reveal the parties were obviously not on “good terms.” The use of the evidence comports with the first step of the Williams test.
{¶45} Reviewing the second step, it is clear that the purpose of the text messages was not to show that Appellant acted in conformity with his past behavior, but rather to establish Appellant‘s motive and intent pursuant to the
{¶46} Finally, under the third Williams step, the probative value of the evidence outweighs the risk of unfair prejudice. It does show quite clearly that Appellant‘s
{¶47} Appellant argues that he did not open the door for impeachment and that, even if he did, the state used the evidence for purposes beyond those permitted by the rule. The state argued at trial that it should be permitted to impeach Appellant on the issue of whether or not he and his wife were on “good terms” based on Appellant‘s testimony on direct examination that they were. In fact, Appellant claimed he was puzzled by her assertions that he wanted to harm her, because they were on such “good terms.” (Tr., p. 787.)
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness‘s character for truthfulness, other than conviction of crime as provided in
Evid. R. 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness‘s character fortruthfulness or untruthfulness, or (2) concerning the character for truthfulness.
{¶48} The state used the evidence to impeach Appellant, who testified that he and his wife had a good relationship, and this impeachment tended to show Appellant‘s motive and intent to commit the charged conduct. Under
{¶49} Appellant‘s final contention regarding this issue is that the trial court should have issued a curative instruction to the jury. A trial court‘s curative instruction is recognized as an effective way to remedy errors which occur during trial. State v. Shaw, 7th Dist. No. 15 BE 0065, 2017-Ohio-1259, ¶ 14; State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). There were no errors requiring the remedy of a curative instruction, here. Even if Appellant had proved error, his counsel did not timely request a curative instruction. Appellant argues that defense counsel objected to the evidence
{¶50} Pursuant to
{¶51} Based on this record it cannot be said that the trial court committed an abuse of discretion. There was overwhelming evidence presented against Appellant. While the test messages were damaging, we cannot say that Appellant would not have
ASSIGNMENT OF ERROR NO. 3
THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN THE FIRST AND SECOND ASSIGNMENTS OF ERROR DENIED MR. THOMAS A FAIR TRIAL.
{¶52} In his third assignment of error, Appellant asserts that the nondisclosure of Appellant‘s oral statements and untimely disclosure of the text message evidence constitute willful discovery violations that, together, seriously affect the integrity and outcome of Appellant‘s proceeding under the cumulative error doctrine.
{¶53} We have held that under this doctrine, a conviction will be reversed when the cumulative effect of the errors in a trial deprives a defendant of the constitutional right to a fair trial, even though each of the errors in isolation does not individually rise to the level necessary for reversal. State v. Baer, 7th Dist. No. 07 HA 8, 2009-Ohio-3248, ¶ 82; State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). The cumulative error doctrine does not apply when the alleged errors are harmless or nonexistent. Id.; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.
{¶55} Based on our resolution of the assignments of error on this appeal, all claimed errors either fail to rise to the level of error at all or are harmless. Therefore, there is no cumulative prejudicial error. Appellant merely states that cumulative error existed on the basis of his previous assignments of error. Appellant provides no further analysis regarding how the alleged cumulative error resulted in prejudice or in the denial of a fair trial. Appellant‘s argument is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED BY FALILING [SIC] TO MERGE THE FELONIOUS ASSAULT CONVICTION WITH THE MERGED KIDNAPPING CONVICTIONS FOR SENENCING [SIC] PURRPOSES [SIC] AS ALLIED OFFENSE OF SIMILAR IMPORT.
{¶56} In his fourth assignment of error, Appellant claims the trial court erred by failing to merge his felonious assault conviction with the already merged kidnapping convictions as allied offenses of similar import for sentencing purposes.
{¶57} Appellant was convicted on two counts of kidnapping in violation of
(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 place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
* * *
(3) To terrorize, or to inflict serious physical harm on the victim or another;
* * *
(B) 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 knowingly do any of the following, under circumstances that create a substantial risk of serious physical harm to the victim or, in the case of a minor victim, under circumstances that either create a substantial risk of serious physical harm to the victim or cause physical harm to the victim:
* * *
(2) Restrain another of the other person‘s liberty.
{¶58}
(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.
{¶59} Appellant correctly cites the controlling law
(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.
(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.
{¶60} The issue of allied offenses for purposes of merger pursuant to
{¶61} In determining whether offenses are allied offenses of similar import within the meaning of
{¶63} The second factor requires review of whether the offenses were committed separately. If so, there is no merger. The evidence of record demonstrates two separate courses of conduct here. The first offense involved restraint of the victim and forcibly removing her to the bathroom. The second offense consisted of utilizing the bath tub as a deadly weapon and submerging the victim after multiple punches to the face. Therefore, this record shows the offenses were committed separately.
{¶64} The third factor requires that the offenses be committed with separate animus or motivation. “Animus refers to the defendant‘s immediate criminal motive, intent or state of mind.” State v. Gilbert, 7th Dist. No. 08 MA 206, 2012-Ohio-1165, ¶ 47; State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, ¶ 15, citing State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). Here, the restraint and movement involved in Appellant‘s kidnapping of Mrs. Thomas is not merely incidental to the felonious assault offense. Appellant kidnapped the victim from the bedroom to the
{¶65} In analyzing the Ruff factors, the offenses were dissimilar in import, were committed separately, and had separate animus or motivation. Any one finding precludes merger. The trial court sentenced Appellant to eleven years on the merged kidnapping convictions and eight years for felonious assault, and ran the sentences consecutively. Based on these findings, Appellant‘s fourth assignment of error is without merit and is overruled.
{¶66} For the reasons set forth above, Appellant‘s arguments are without merit and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.