State v. WidnerState v. Widner
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-528930
RELEASED AND JOURNALIZED: March 24, 2011
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Ronni Ducoff
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Dennie Widner, appeals from the trial court’s judgment sentencing him in two cases to 40 years incarceration. He contends that his kidnapping convictions are allied offenses and, therefore, the trial court erred in not merging them for purposes of sentencing. He further contends that the trial court erred in imposing consecutive sentences without making the findings required by
I. Procedural History
{¶ 3} Pursuant to a plea agreement, Widner pled guilty in Case No. CR-528930 to two counts of disseminating matter harmful to minors, two counts of rape as amended to delete the age of the victim and the specifications, and two counts of kidnapping as amended to delete the specifications. The State nolled the remaining counts. In Case No. CR-530665, Widner pled guilty to amended counts of sexual battery and abduction. The State nolled the child endangering charge.
{¶ 4} At sentencing, the trial court sentenced Widner in Case No. CR-528930 to nine and ten years respectively on the rape counts and eight years each on the kidnapping counts, all to be served consecutively. The trial court sentenced him to six months incarceration on each of the misdemeanor counts of disseminating matter harmful to minors, to run concurrent to the other sentences, for a total of 35 years incarceration.
{¶ 5} In Case No. CR-530665, the trial court determined that the sexual battery and abduction counts were allied offenses, and the State
II. Allied Offenses
{¶ 6} The events leading to the rape and kidnapping offenses to which Widner pleaded guilty in CR-528930 occurred over two days. Unbeknownst to the 11-year-old victim’s father, Widner, who knew the victim, offered to take him to a carnival and treat him to unlimited rides. After a few rides, Widner suggested they go out to eat and shopping for video games before returning to the carnival. Widner and the victim left the carnival in Widner’s van and went out to eat. After dinner, they went shopping at several stores, but instead of buying video games, Widner purchased a tote bag.
{¶ 7} When they returned to the van after shopping, Widner told the boy he had a gun and then, after forcing him to undress, tied his limbs together with duct tape. Widner then drove the victim to his apartment, forced him to get into the tote bag, and then left him in the van while he got a dolly. When he returned to the van, Widner put the tote bag, with the child inside, onto the dolly and took the child into his apartment. Once inside the apartment, Widner removed the duct tape and raped the boy.
{¶ 9} In his first assignment of error, Widner contends that the trial court erred in failing to merge the kidnapping counts in CR-528930. He concedes that the rapes and kidnappings were not allied offenses subject to merger, but contends that the kidnapping convictions should have merged.
{¶ 10} The record reflects that Widner never raised the issue of merger in the trial court and therefore he has waived all but plain error on appeal. State v. Russell (Sept. 23, 2004), 8th Dist. No. 83699, citing State v. Smith, 80 Ohio St.3d 89, 118, 1997-Ohio-355, 684 N.E.2d 668; State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364.
{¶ 11} Plain error is an obvious error or defect in the trial court proceeding that affects a substantial right. State v. Gray, 8th Dist. No. 92303, 2010-Ohio-240, ¶17, citing State v. Long (1978), 53 Ohio St.2d 91, 94, 372 N.E.2d 804; see, also,
{¶ 13} “(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.
{¶ 14} “(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.”
{¶ 15} Recently, in State v. Johnson, __ Ohio St.3d __, 2010-Ohio-6314, __ N.E.2d __, the Ohio Supreme Court overruled State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which required a comparison of statutory elements solely in the abstract under
{¶ 16} Thus, “a defendant can be convicted and sentenced on more than one offense if the evidence shows that the defendant’s conduct satisfies the
{¶ 17} In other words, “[i]f the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Johnson at ¶49-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50 (Lanzinger, J., dissenting).
{¶ 18} Widner contends that only one kidnapping occurred in this case; specifically, that his act of transporting the victim to his apartment, holding him overnight, and then taking him to a place to release him in the neighborhood was a single continuous course of conduct. We disagree because we find independent kidnappings based on separate conduct, consistent with Widner’s plea and the trial court’s sentence.
{¶ 19} On the authority of State v. Ware (1980), 63 Ohio St.2d 84, 406 N.E.2d 1112, we find that the initial kidnapping occurred when Widner lured the victim away from the carnival under false pretenses. In Ware, the victim
{¶ 20} Likewise, in State v. Higgins (July 11, 1985), 10th Dist. No. 84AP-703, the court held that the defendants’ conduct in telling two girls that they would give them a ride to one of the defendant’s homes, where they raped them, was kidnapping by deception that was separate from the subsequent kidnapping by force to facilitate the rapes. See, also, State v. DePina (1984), 21 Ohio App.3d 91, 486 N.E.2d 1155 (Defendant lured the victim out of a bar by deception, then forcibly removed her to a secluded area where he raped her. Court found asportation by deception that was
{¶ 21} In this case, as in Ware, Higgins, and DePina, the initial kidnapping was committed by deception and involved conduct independent of the subsequent kidnappings by force to facilitate the rapes. Furthermore, as explained below, the subsequent kidnappings were neither allied offenses of the rapes nor of the initial kidnapping by deception and, hence, the trial court properly did not merge them for purposes of sentencing.
{¶ 22} In State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, the Ohio Supreme Court established guidelines for determining whether kidnapping and rape are committed with a separate animus so as to permit punishment under
{¶ 23} Here, Widner tied the victim up with duct tape, forced him into a tote bag, snuck him into his apartment, threatened him with a knife, raped him, forced him to remain in the apartment overnight, and then, after raping him again, drove him around the next morning before releasing him in his neighborhood. It is apparent that the movement was substantial, the confinement was secretive, and the restraint was prolonged. It is also apparent that Widner’s actions subjected the victim to an increased risk of harm, separate from the underlying rapes. Hence, under Logan, and as Widner conceded, these kidnappings (when Widner threatened the victim with a gun, forced him to undress, and then tied him up with duct tape; when Widner forced the victim into the tote bag, snuck him into his apartment, forced him to stay there overnight; when he drove the victim around the next morning) were not allied offenses of the rapes and did not merge with the rape convictions.
{¶ 24} Nor were these subsequent kidnappings allied offenses of the initial kidnapping. The initial kidnapping involved asportation by deception; the subsequent kidnappings involved asportation by force. Widner’s conduct in luring the victim away from the carnival was different than that involved in subsequently restraining and confining him by force. Ware,
{¶ 25} The protection of
III. Consecutive Sentences
{¶ 26} In his second assignment of error, Widner contends that the trial court erred in imposing consecutive sentences without making the findings required by
{¶ 27} The Ohio Supreme Court recently rejected this argument in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. It held that Ice “does not revive Ohio’s former consecutive sentencing statutory provisions,
{¶ 28} Widner’s second assignment of error is therefore overruled.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, P.J., and LARRY A. JONES, J., CONCUR