[Cite as State v. Freeman, 2014-Ohio-1013.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 112 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) GARY G. FREEMAN ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 11 CR 770
JUDGMENT: Affirmed in Part. Reversed in Part. Limited Remand.
APPEARANCES: For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Lori A. Curd Director Legal Clinic Mr. Justin Downing, Certified Legal Intern University of Akron School of Law Office of Appellate Review Akron, Ohio 44325-2901
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 14, 2014 [Cite as State v. Freeman, 2014-Ohio-1013.] WAITE, J.
{¶1} Appellant Gary G. Freeman appeals his Mahoning County Common
Pleas Court conviction on charges of attempted rape and kidnapping. Appellant
forced his victim, Twanda Tarver, into a car in the early hours of the morning as she
left a nightclub in Youngstown. Appellant held her in the car in fear for her life for
more than three hours. Appellant then parked in a secluded location in Warren,
shocked her with a stun gun and attempted to rape her, before ordering her out of the
car and continuing to physically assault her. Three of Appellant’s four assignments of
error, which challenge the weight and sufficiency of the evidence and seek to merge
his rape and kidnapping convictions, are without merit and are overruled. Appellant’s
fourth assignment of error concerning the omission of postrelease control information
from his sentencing hearing has merit. Appellant’s convictions and sentence are
affirmed, however, the matter is remanded for the limited purpose of allowing the trial
court to inform Appellant of mandatory postrelease control sanctions.
Factual and Procedural History
{¶2} During the early morning hours of June 10, 2012, in the confusion
created as a nightclub closed and police responded to a fight, Appellant approached
his victim from behind, placed an object against her back, and directed her to get into
his car. He proceeded to speed along Market St. as she begged him not to kill her
and told him she would pay him to let her go. At trial, Ms. Tarver stated that she was
in fear for her life and complied with Appellant out of that fear. She did not know
where Appellant was taking her and was unable to recall in detail what occurred in
the hours after she was forced into the car. Ms. Tarver did testify that Appellant -2-
eventually stopped the car in a weedy, overgrown, area away from any houses,
turned off the car lights, shocked her with a stun gun and ordered her to remove her
pants. When she complied, Appellant licked her vagina twice before instructing her
to get out of the car. As she exited the car partially clothed, Appellant then attempted
to force her to the ground using the stun gun, stating “Bitch, fall. Why won’t you fall?”
(Tr. Vol. I, p. 116.)
{¶3} Because she was still upright, Appellant punched her in the face until
she fell to the ground. He continued to kick, punch and choke her, and pulled her
hair and clothing as she lay on the ground. At some point, Appellant asked Ms.
Tarver where her money was located. She told him that it dropped when he pulled
her shirt up. While he looked for the money, she was able to rise and pull on her
pants. Then she ran away from Appellant, leaving her underwear and shoes behind.
Appellant got into the car to go after her, shouting after her “Bitch, you better run
because I’m about to run you over; I’m going to kill you.” (Tr. Vol. I, p. 118.) Another
car turned onto the street at this point, and Appellant, apparently seeing the
headlights, put his car in reverse and drove off. Ms. Tarver continued running until
she reached a nearby house. The homeowner allowed her to call the police. She
had to request that the homeowner tell her where they were located. Prior to this
conversation, Ms. Tarver did not know where she was or that Appellant had taken her
out of Mahoning County and into Warren, in Trumbull County.
{¶4} Ms. Tarver testified that she had been drinking that night at the
nightclub before it closed, but that she felt sober when Appellant approached her. -3-
Ms. Tarver also said that she had had a brief interaction with Appellant at the club
before it closed, where she told him that she had a boyfriend so he would leave her
alone. She also believed that Appellant forced her to ingest additional alcohol while
she was in the car. While he held her in the car Appellant also struck Ms. Tarver with
a beer can and poured its contents over her. After Ms. Tarver escaped and called
the police, she was treated at Trumbull Memorial Hospital for various injuries.
{¶5} The treating physician noted that she smelled of alcohol; blood was
drawn when she was examined and her blood alcohol level at the time of treatment
was 0.06%. Ms. Tarver was treated for numerous bruises and contusions. She
sustained nerve damage in her neck and a broken nose due to Appellant’s attack.
According to her testimony, the nerve damage resulted from Appellant’s repeated
use of the stun gun. At trial, the jury saw photos of the injuries inflicted on Ms. Tarver
and heard testimony describing her appearance and emotional state when police
responded to the 911 call. The Warren officers who responded to her call recovered
flip flops, underwear, and a beer can from the area Ms. Tarver described as the
scene of the attack. The Youngstown police later recovered the car used by
Appellant, which had been stolen. When the car was recovered it contained multiple
liquor bottles, beer cans, purses, a stun gun, and papers bearing Appellant’s name.
{¶6} Ms. Tarver’s ordeal resulted in a four count indictment that charged
Appellant with two counts of kidnapping, one count of attempted rape, and one count
of receiving stolen property. Appellant’s Crim.R. 29 motion for acquittal was denied
at the close of the state’s case. All four counts were submitted to the jury. Appellant -4-
was acquitted on one of the two kidnapping charges, a violation of R.C.
2905.01(A)(3), kidnapping for the purpose of terrorizing or inflicting serious physical
harm on the victim or another. He was convicted on the remaining counts, attempted
rape and kidnapping in violation of R.C. 2905.01(A)(4), for the purpose of engaging in
sexual activity against the victim’s will, and receiving stolen property. His timely
appeal was filed from the trial court’s entry of his sentence.
Argument and Law
ASSIGNMENT OF ERROR NO. 1
APPELLANT FREEMAN’S KIDNAPPING CONVICTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
VIOLATION OF THE CONSTITUTION OF THE STATE OF OHIO,
ARTICLE IV, SECTION 3.
ASSIGNMENT OF ERROR NO. 2
APPELLANT FREEMAN’S ATTEMPTED RAPE CONVICTION WAS
{¶7} Appellant’s first and second assignments of error both address the
weight of the evidence supporting his convictions. Because both assignments
involve the same standard of review and applicable law they will be considered
together. -5-
{¶8} On review as to whether a criminal judgment is against the manifest
weight of the evidence, this Court acts as a “thirteenth juror” to determine whether
“the jury clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1983). The verdict is not against the weight of the
evidence when there is evidence which, if believed, will convince the average person
of the accused’s guilt beyond a reasonable doubt. State v. Eley, 56 Ohio St.2d 169,
172, 383 N.E.2d 132 (1978).
{¶9} The “‘[w]eight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on
its effect in inducing belief.”’” (Internal citations and emphasis omitted) State v.
Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins, supra, at
387. The weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of fact to determine. State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus.
{¶10} Appellant was convicted on one count of kidnapping, a violation of R.C.
2905.01(A)(4), which provides: -6-
No person, by force, threat, or deception * * * 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:
***
(4) To engage in sexual activity, as defined in section 2907.01 of the
Revised Code, with the victim against the victim’s will
This offense is a first degree felony. R.C. 2907.01 defines sexual activity as either
sexual contact, which includes “any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person
is a female, a breast, for the purpose of sexually arousing or gratifying either person,”
or sexual conduct, which includes “vaginal intercourse between a male and female,
anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
without the privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of
another.” R.C. 2907.01(A), (B), and (C).
{¶11} Appellant was also convicted of attempted rape, a violation of R.C.
2907.02(A)(2), which provides that “[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force or
threat of force,” and R.C. 2923.02, “[n]o person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the offense.”
Attempted rape is a second degree felony. Appellant’s third conviction was for -7-
receiving stolen property in relation to the vehicle he used to abduct Ms. Tarver,
which was owned by a third party and recovered after the attack.
{¶12} Appellant has neglected to identify any specific part of the transcript
that would support the alleged defect in the state’s evidence. Nevertheless, a review
of the transcript reflects that the state presented testimony that Appellant approached
Ms. Tarver from behind and compelled her to get into a stolen car. Appellant then
drove with Ms. Tarver against her will, begging him not to kill her, at a high rate of
speed, telling her when she attempted to get out of the car: “the only way you’re
getting out of this car is if you jump out.” (Tr. Vol. II, p. 224.) Appellant kept Ms.
Tarver in the moving car for approximately three hours, before parking in a secluded
location: “it looked like it used to be a neighborhood that had houses there and they
had been torn down, and grass had grown over. And the grass was really high on
both sides of the street, very high, so high that if a vehicle was stopped there, if you
were on one of the other streets, the side streets, you wouldn’t be able to see that
vehicle * * * maybe five, six feet.” (Tr. Vol. II, pp. 225-226.)
{¶13} Appellant proceeded to attack Ms. Tarver with a stun gun, force her to
remove her pants and underwear and attempted an oral sexual act. Appellant
stopped, ordered his victim out of the car, forced her to the ground by use of the stun
gun and, when that failed, by a punch to the face. He kicked and punched her as
she lay on the ground. Appellant was distracted briefly, which allowed Ms. Tarver to
escape. He got into the car and came after her, until he was interrupted by another
vehicle at the scene. Appellant backed away and drove off, allowing Ms. Tarver to -8-
run down the block to an occupied house where she and the homeowner called 911.
Those facts provide probative evidence on each element of the offenses charged.
{¶14} Ms. Tarver’s testimony and that of the various officers who responded
to the call and interacted with her not only that night, but in the following days, and
that of the hospital staff, is consistent. All of this testimony also provides substantive
evidence on each element of the offenses charged. At trial, defense counsel
pointedly questioned Ms. Tarver about her alcohol consumption and prescription drug
use on the night in question. Defense counsel emphasized the fact that the witness
did not have perfectly sequential or complete memories of the night. Neither defense
counsel’s pointed concerns, nor arguments raised on appeal, contradict the relevant
portions of Ms. Tarver’s testimony that she was taken against her will, transported
and brutally attacked several times that night.
{¶15} The jury returned a guilty verdict on one of the two kidnapping charges
included in the indictment and acquitted Appellant on the alternative charge. During
oral argument, Appellant’s counsel emphasized that one of the hospital staff
indicated that she remembered Ms. Tarver saying that she got into the car initially
because she believed Appellant would take her home. Counsel argues that the
difference between the staff member’s recollection of what she was told and Ms.
Tarver’s direct testimony is a defect in the state’s case necessitating reversal. This
argument overlooks two essential points: first, the elements of kidnapping include
“force, threat, or deception.” Thus, whether Appellant got her in the car by lying to
her or by physical force, he would still be charged with kidnapping. Second, the jury -9-
is entitled to determine the credibility of each witness’s recollection. There is no
indication in this record that the jury gave undue weight to any single piece of the
evidence. There is nothing in this record that would support a conclusion that the jury
lost its way, and we defer to the jury’s determination of credibility. Barnhardt and
Thompkins, supra. Appellant’s first and second assignments of error are without
merit and are overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
FREEMAN TO CONSECUTIVE PRISON TERMS FOR KIDNAPPING,
AND ATTEMPTED RAPE IN VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AS THESE CRIMES ARE ALLIED
OFFENSES UNDER R.C.2941.25.
{¶16} The law pertaining to allied offenses in Ohio is continually evolving.
However, as we have recently discussed at length in State v. Helms, 7th Dist. No. 08
MA 199, 2012-Ohio-1147 and State v. Gilbert, 7th Dist. No. 08 MA 206, 2012-Ohio-
1165, the Supreme Court’s plurality decision in State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061, is the standard applied by the majority of
Ohio appellate courts. “Allied offenses of similar import” are defined by R.C.
2941.25, which provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or -10-
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.
Although the statute has remained unchanged by the legislature since its passage in
1972 (effective January 1, 1974), Ohio jurisprudence shifted from a contextual
analysis of the facts of each individual case to an objective comparison of the
statutory elements of each offense, before this most recent return, in Johnson, to a
fact-driven analysis. Johnson, supra.
{¶17} Pursuant to Johnson, a trial or reviewing court is to determine whether
the “offenses are allied offenses of similar import” by applying two stages of analysis.
Johnson, supra, ¶48. First, we are to determine “whether the offenses were
committed by the same conduct,” and “whether it is possible to commit one offense
and commit the other with the same conduct” but not “whether it is possible to commit
one without committing the other.” (Emphasis sic.) Id. at ¶47-48. If the answer to
both questions is “yes,” and the “offenses correspond to such a degree that the
conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.” Id. at ¶48. If, on
the other hand, “the court determines that the commission of one offense will never -11-
result in the commission of the other,” then the offenses are not allied and do not
merge. (Emphasis sic.) Id. at ¶51.
{¶18} The analysis does not stop there, however. If the court identifies
offenses of similar import, it must consider whether the offenses were committed
separately, or if the defendant had separate animus for each offense. Id. at ¶51. If
the offenses were committed separately, or if there was separate animus for each,
they remain separate offenses for sentencing purposes. Id. When deciding whether
to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must
review the entire record, including arguments and information presented at the
sentencing hearing, to determine whether the offenses were committed separately or
with a separate animus. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982,
syllabus.
{¶19} Because the allied offenses test is now both case and fact specific, it
“may result in varying results for the same set of offenses in different cases.”
Johnson at ¶52. An “appellate court reviews the legal conclusion of whether the
offenses are allied using a de novo standard, but because the trial judge is the fact-
finder, the trial court’s determinations as to the facts are not reviewable de novo.”
State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶30. “In
fact, the appellate court should defer to the factual findings of the trial court, provided
they are supported by some competent, credible evidence.” Id.
{¶20} Appellant was convicted on two counts: one count of attempted rape, a
violation of R.C. 2907.02(A)(2); one count of kidnapping, a violation of R.C. -12-
2905.01(A)(2) and (A)(4). Appellant’s challenge to his separate sentences
misinterprets the state of the law with regard to rape and kidnapping. While all rapes
inherently involve a restraint on the liberty of another, and where the act of rape is the
sole unlawful exercise of restraint on the physical liberty of another person, the law is
clear that any accompanying kidnapping charge should merge with the rape charge.
State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979). Although Appellant is
correct to the extent that courts have held that every instance of rape includes a
kidnapping, Appellant’s argument that in every case the rape and kidnapping charges
must merge ignores the relevant law in Logan and Johnson, and instead relies
entirely on State v. Donald, 57 Ohio St.2d 73, 386 N.E.2d 1341 (1979), which
predated Logan, and was substantively altered by the merger analysis prescribed by
the Supreme Court in Logan and again, more recently in Johnson.
{¶21} The Logan Court examined the law of merger as it regards kidnapping
in various states before concluding “we first note our disagreement with those states
which require movement of the victim to sustain a conviction for kidnapping * * * [w]e
believe that prolonged restraint without asportation may be as penologically
significant as substantial asportation and, under certain circumstances, will support a
conviction for kidnapping as a separate act or animus from that of rape.” Id. at 134-
135. The Logan Court emphasized that “[s]ecret confinement, such as in an
abandoned building or nontrafficked area, without the showing of any substantial
asportation, may, in a given instance, also signify a separate animus and support a
conviction for kidnapping apart from the commission of an underlying offense.” Id. at -13-
135. According to the Logan Court, the “primary issue * * * is whether the restraint or
movement of the victim is merely incidental to a separate underlying crime or,
instead, whether it has a significance independent of the other offense.” Id. at 135.
{¶22} The record before the trial court in this instance discloses a kidnapping,
which involved Appellant surprising his victim from behind, holding an object to her
back, forcing her into a car, restraining her within the car for over three hours, and
transporting her across county lines against her will and in fear for her life. For
purposes of R.C. 2905.01(A)(4) which defines kidnapping, Appellant kidnapped Ms.
Tarver when he forced her into the car “by force, threat, or deception.” The elements
of the actual kidnapping were complete when Ms. Tarver entered the car against her
will. Appellant committed attempted rape only hours later and after numerous
intervening acts, many of which could have resulted in separate charges or additional
counts of kidnapping. Appellant also subsequently forced his partially unclothed
victim from the car in a secluded area and physically threw her to the ground, again,
with an apparent sexual motive. It was only when Appellant became distracted by
the thought of the victim’s money that she was able to escape and run for help.
Appellant’s attempt to rape Ms. Tarver may have facilitated the jury’s determination
that Appellant kidnapped the victim with a sexual purpose, however, the attempted
rape was not itself sufficient or necessary to sustain Appellant’s kidnapping
conviction. The sexual purpose element of kidnapping is satisfied by sexual contact
as well as sexual conduct. Appellant’s attempted rape was unquestionably sexual
contact. In this record, removing Ms. Tarver’s underwear, pulling her shirt up, and -14-
touching her breasts also establish a sexual purpose. Such assaults occurred both
inside the vehicle and after the victim’s forced removal. Moreover, this record
discloses exactly the “substantial asportation,” “secret confinement” and “prolonged
restraint” that the Logan Court indicates as having “significance independent of the
other offense.” Id. at 134-135. Appellant’s actions resulted in a complete removal of
Ms. Tarver against her will and after prolonged restraint to the type of location the
Logan Court specifically cited would support a separate kidnapping charge, even in
the absence of this substantial relocation. Id. at 135. Again, the facts of this case
tend to support several kidnapping counts. Certainly, the factual circumstances in
this case support the trial court’s conclusion that Appellant’s conviction for kidnapping
was not an allied offense of the attempted rape. The trial court correctly applied the
applicable law, and separate sentences for these offenses were lawful. Johnson,
supra, ¶47 and Logan, supra 135. Appellant’s third assignment of error is without
merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN FAILING TO NOTIFY APPELLANT
FREEMAN OF A MANDATORY POST-RELEASE CONTROL TERM IN
VIOLATION OF R.C. 2967.28(B)(1).
{¶23} Appellant contends, and the state readily concedes, that Appellant was
not informed that he was subject to mandatory postrelease control as part of his
sentence during his sentencing hearing. R.C. 2967.28(B)(1) governs sentencing and
requires the trial court to impose a period of postrelease control and to inform -15-
Appellant at sentencing. Clearly, Appellant is correct when he states that R.C.
2967.28(B)(1) requires the court to inform a defendant of the postrelease control
mandatory period.
{¶24} Section R.C. 2929.19(B)(2)(c) that governs the information to be
provided by the trial court at sentencing, and requires that the trial court:
(c) Notify the offender that the offender will be supervised under
section 2967.28 of the Revised Code after the offender leaves prison if
the offender is being sentenced for a felony of the first degree or
second degree, for a felony sex offense, or for a felony of the third
degree that is not a felony sex offense and in the commission of which
the offender caused or threatened to cause physical harm to a person.
This division applies with respect to all prison terms imposed for an
offense of a type described in this division, including a term imposed for
any such offense that is a risk reduction sentence, as defined in section
2967.28 of the Revised Code. If a court imposes a sentence including a
prison term of a type described in division (B)(2)(c) of this section on or
after July 11, 2006, the failure of a court to notify the offender pursuant
to division (B)(2)(c) of this section that the offender will be supervised
under section 2967.28 of the Revised Code after the offender leaves
prison or to include in the judgment of conviction entered on the journal
a statement to that effect does not negate, limit, or otherwise affect the
mandatory period of supervision that is required for the offender under -16-
division (B) of section 2967.28 of the Revised Code. Section 2929.191
of the Revised Code applies if, prior to July 11, 2006, a court imposed a
sentence including a prison term of a type described in division (B)(2)(c)
of this section and failed to notify the offender pursuant to division
(B)(2)(c) of this section regarding post-release control or to include in
the judgment of conviction entered on the journal or in the sentence a
statement regarding post-release control.
{¶25} “A sentence that does not include the statutorily mandated term of post
release control is void, is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph one of the syllabus.
{¶26} While the trial court did include mandatory postrelease control
information in his written sentencing entry, it is uncontested that Appellant was not
verbally informed of these provisions at his sentencing hearing. After July 11, 2006,
pursuant to R.C. 2929.191, the trial court’s omission of postrelease control
information during the sentencing hearing may be remedied as follows:
On and after July 11, 2006, a court that wishes to prepare and issue a
correction to a judgment of conviction of a type described in division
(A)(1) or (B)(1) of this section shall not issue the correction until after
the court has conducted a hearing in accordance with this division.
Before a court holds a hearing pursuant to this division, the court shall
provide notice of the date, time, place, and purpose of the hearing to -17-
the offender who is the subject of the hearing, the prosecuting attorney
of the county, and the department of rehabilitation and correction. The
offender has the right to be physically present at the hearing, except
that, upon the court's own motion or the motion of the offender or the
prosecuting attorney, the court may permit the offender to appear at the
hearing by video conferencing equipment if available and compatible.
An appearance by video conferencing equipment pursuant to this
division has the same force and effect as if the offender were physically
present at the hearing. At the hearing, the offender and the prosecuting
attorney may make a statement as to whether the court should issue a
correction to the judgment of conviction.
R.C. 2929.191(C). A trial court may correct its omission to inform a defendant about
postrelease control sanctions by complying with R.C. 2929.191 and issuing a
corrected sentence. However, in cases like the one before us where no corrected
entry is necessary, only a hearing is required. State v. Adams, 7th Dist. No. 11 MA
65, 2012-Ohio-432; State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434.
{¶27} Because the trial court did not verbally inform Appellant of mandatory
postrelease control sanctions at sentencing, his fourth assignment of error has merit.
Appellant is entitled to a new limited sentencing hearing during which the court will
explain the mandatory period of postrelease control included in his sentence. This
hearing may be held in person or via video conferencing at the trial court’s discretion
and in compliance with the statute. Appellant’s fourth assignment of error is -18-
sustained, the matter is remanded to the trial court for the limited purpose of holding
a sentencing hearing to address Appellant in regards to his postrelease control
sanctions.
Conclusion
{¶28} Appellant’s convictions were supported by sufficient evidence and were
not against the manifest weight of the evidence. Based on this record, Appellant’s
rape and kidnapping convictions are not allied offenses and do not merge.
Appellant’s first, second and third assignments of error are without merit and are
overruled. Appellant’s fourth assignment has merit. The judgment of the trial court is
affirmed, but the matter is hereby remanded for the limited purpose of a sentencing
hearing in order to inform Appellant of his postrelease control sanctions.
Donofrio, J., concurs.
DeGenaro, P.J., concurs in judgment only; see concurring in judgment only opinion. -19-
DeGenaro, P.J., concurring in judgment only. {¶29} I cannot concur with the majority opinion because the analysis of the facts at ¶22 strains merger jurisprudence with respect to kidnapping and rape offenses. The facts have been strained and parsed in order to support the majority's suggestion that would have supported "separate charges or additional counts of kidnapping." This is a curious conclusion when juxtaposed against the jury's verdict here. Appellant was charged with two kidnapping offenses, and convicted of R.C. 2905.01(A)(4), kidnapping for the purpose of engaging in sexual activity against the victim's will; but acquitted of R.C. 2905.01(A)(3), kidnapping for the purpose of terrorizing or inflicting serious physical harm on the victim. {¶30} And although not challenged on appeal, I also write separately because the majority nonetheless failed to clarify that venue was proper in this case and that the Mahoning County Common Pleas Court had jurisdiction over Appellant's attempted rape charge. {¶31} "Venue relates to the right of a criminal defendant to be tried in the county in which the alleged offense occurred. Although venue is not an element of the charged offense, the prosecution has a burden of proving, beyond a reasonable doubt, that the offense happened in the county where the indictment was returned or that the defendant waived this right. Proper venue in any particular county is determined by examining the elements of the charged offense. If any element of the charged offense was committed in the county where the offense was tried, venue is proper." State v. Harris, 6th Dist. No. F-04-005, 2005-Ohio-1779, ¶18 (internal citations omitted); See also, Section 10, Article I, Ohio Constitution; R.C. 2901.12. {¶32} Appellant abducted the victim in Mahoning County and drove for three hours with the victim in his vehicle and transported her across the county line into Trumbull County where the attempted rape occurred. Regarding venue, pertinent to this appeal, R.C. 2901.12 provides:
(C) When the offense involved the * * * unlawful taking * * * of another, the offender may be tried in any jurisdiction from which * * * [the] victim was taken * * * -20-
(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim * * *
(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective. * * *
(6) The offenses were committed along the offender's line of travel in this state, regardless of the offender's point of origin or destination.
Id. {¶33} Appellant's course of criminal conduct commenced in Mahoning County where he abducted the victim and concluded in Trumbull County where he punched, kicked, choked and used a stun gun on the victim, and also attempted to rape her by licking her vagina. Majority Opinion, ¶2-3, 12-13. Elements of the kidnapping offenses occurred in Mahoning County, whereas all the elements of the attempted rape offense occurred in Trumbull County. The facts here are similar to those considered by the Third District in State v. Lee, 3rd Dist. No. 14-06-18, 2006-Ohio- 6091, whose analysis is instructive here:
In the present case, Lee was charged with three counts of receiving stolen property in violation or R.C. 2913.51, and one count of engaging in a pattern of corrupt activity for the violations of R.C. 2913.51. Pursuant to R.C. 2901.12, any of the offenses could be tried in Union County if any one of their elements was committed in Union County. Additionally, if these offenses were committed as part of a course of criminal conduct, all could be tried in any jurisdiction where -21-
any element of any of the offenses occurred. Therefore, in order to try Lee for the four offenses in Union County, the State had to demonstrate that these offenses were part of a course of criminal conduct and that at least one element of any one of these offenses occurred in Union County, Ohio. See State v. Edwards, supra.
The evidence presented at trial established that Delaney and Hendrickson received crack cocaine from Lee each time they brought a vehicle stolen from Union County to Lee's residence in Franklin County. The commission of these offenses was the basis for Count IV of the indictment: engaging in a pattern of corrupt activity, which requires two or more incidents of corrupt activity. See R.C. 2923.32; R.C. 2923.31(E). Therefore, these offenses were inextricably linked together.
Id., ¶16-17. {¶34} Pursuant to R.C. 2901.12(C) and (H), Appellant's case was properly venued in Mahoning County and the common pleas court from that county had jurisdiction over not only the kidnapping charge but also the attempted rape charge, even though that offense was committed in another county. As part of a course of criminal conduct, Appellant kidnapped and attempted to rape the same victim as part of the same transaction or chain of events along his line of travel in this state. R.C. 2901.12(H)(1), (3) and (6). Thus, the Mahoning County Common Pleas Court still has jurisdiction over the attempted rape offense, even though it took place in Trumbull County.