[Cite as State v. Kuntz, 2022-Ohio-3376.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA3731
v. :
CLARENCE J. KUNTZ, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Erika M. LaHote, Assistant State Public Defender, Columbus, Ohio, for appellant.1
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. __________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:9-22-22 ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas Court
judgment of conviction and sentence. Clarence J. Kuntz, defendant
below and appellant herein, assigns three errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN SENTENCING KUNTZ WHEN IT FAILED TO DETERMINE THAT COUNT ONE (KIDNAPPING) AND COUNT THREE (RAPE) WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT.”
1 Different counsel represented appellant during the trial court proceedings. 2 ROSS, 20CA3731
SECOND ASSIGNMENT OF ERROR:
“KUNTZ WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION WHEN HIS ATTORNEY FAILED TO ARGUE THAT HIS CONVICTIONS FOR KIDNAPPING AND RAPE WERE ALLIED OFFENSES OF SIMILAR IMPORT.”
THIRD ASSIGNMENT OF ERROR:
“KUNTZ’S CONVICTIONS ON RAPE AND KIDNAPPING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
{¶2} On June 5, 2020, a Ross County Grand Jury returned an
indictment that charged appellant with (1) one count of kidnapping
in violation of R.C. 2905.01(A)(4), a first-degree felony, (2) one
count of kidnapping in violation of R.C. 2905.01(A)(3), a first-
degree felony, (3) one count of rape in violation of R.C. 2907.02,
a first-degree felony, and (4) 16 counts of assault in violation of
R.C. 2903.13, first-degree misdemeanors.
{¶3} At appellant’s jury trial, Chillicothe Police Officer
Christopher McGowen testified that, after he responded to a
dispatch to the Valero station regarding a possible assault, he
found the victim, C.D., who asked him to take her home. C.D. told
McGowen that “Johnnie Kuntz” [appellant] assaulted her, but she did 3 ROSS, 20CA3731
not wish to file a complaint. She also told McGowen that “she
couldn’t get away from” appellant, he assaulted her three days ago,
and she feared he would assault her again. McGowen stated “there
may have been some sort of old bruising to her face,” although he
listed “no injuries” in his report.
{¶4} Chillicothe Police Officer Adam Steele testified he
visited the victim’s mother’s home to follow up on the assault
allegation. Steele described an exhibit and noted that the victim
had “some bruising and a scratch mark around her right eye” and “a
small puncture wound on her left forearm.” When Steele followed up
a second time, he observed that the victim also had “scratches on
her lower back. There was a bruise behind her left knee. And
there was also scratches, bruising on her thigh area, as same
injuries I originally saw with her right eye bruise and scratch
marks on her right eye and left arm puncture.”
{¶5} Steele also visited the Chillicothe AmVets, near the
scene of the assault, to obtain video surveillance footage. Steele
testified that at one point, he observed appellant walk along the
flood wall. After a brief foot chase, Steele apprehended
appellant, placed him under arrest and advised him of his Miranda
rights. Appellant reportedly stated, “This was bullshit and I did
not rape that bitch.” When Steele asked appellant about the 4 ROSS, 20CA3731
victim’s markings, appellant responded that “he didn’t know.”
Appellant’s backpack, however, contained a “small red and black
screwdriver filed to a point,” “exactly what [the victim] had
described that Mr. Kuntz had used on her.” Steele also testified
about the victim’s photographs that depict bruises to her right
eye, a scratch under her right eye, a scratch to her lower back,
abrasions and bruises around her right eye, a puncture wound in her
left forearm, bruises behind her left knee, bruises on her left
thigh, bruises from her upper thigh towards her buttocks, bruises
on her buttocks, and bruises and discoloration on the left side of
her face.
{¶6} On cross-examination, Officer Steele acknowledged that
the victim said she knew appellant for three months prior to the
assault and further admitted that, on multiple days, she allowed
appellant to inject her with methamphetamine. Steele further
acknowledged that appellant called him and left a message prior to
appellant’s apprehension.
{¶7} Mark Milella, a homeless man, testified that he observed
a knot on the victim’s head and appellant told him the victim “fell
over a bank.” Milella said a Pilot gas station maintenance person
offered to allow C.D. to use the Pilot’s shower facility, but “the
guy that was with her wouldn’t let her go in by herself.” 5 ROSS, 20CA3731
{¶8} Chillicothe AmVets Post Commander Martin Withrow
testified that the alley behind the Post has a ramp for deliveries,
and “if you’re down in the bottom of it nobody can see ya.”
Withrow also provided to police security video that depicts two
individuals on the ramp.
{¶9} C.D., the victim, testified that she has known appellant
for approximately eight months and they are “just friends,” but she
also acknowledged that she had referred to him as her “boyfriend”
during a three-day period early in their relationship. C.D.
recalled that on May 17, 2020, she had been “up all night” using
methamphetamine when a woman in a car in the “mental health”
parking lot asked for a cigarette. At this point, C.D. had not
seen appellant for over a month. Apparently, while C.D. sat in the
woman’s car, appellant walked to the car, said “come with me it’s
important,” then “snatched me up,” grabbed her arm, “yanked” her
from the car and took her to a “little cement walkway” about thirty
seconds away”... and “told me that I got myself in a position now
and then he beat me. For about an hour and half. * * * I’m
talking, he literally tried to break my leg, he head butted me, he
punched me, he slapped me, raped me. * * * He threatened to kill
me * * * even stabbed me with a screwdriver.” After the assault,
appellant told C.D. she is his slave, “he told me when to speak, 6 ROSS, 20CA3731
what to do, and whenever he said it I do it right and then and
there.” Appellant could not leave because “he threatened to kill
me if I were to leave.” “I had a big bump on my forehead, my nose
was bleeding, he had choked me.”
{¶10} During the attack, appellant used methamphetamine and
heroin and threw away C.D.’s coat after he used it to wipe blood
from her face. C.D. also noticed a surveillance camera, along with
a sign that says, “smile you’re on camera.” Later, C.D.’s brother
contacted law enforcement about the video that the prosecution
eventually played for the jury. C.D. further testified that, from
the time of the assault until two days later when she asked for
help at the Valero station, she stayed with appellant because she
feared for her life.
{¶11} On cross-examination, C.D. acknowledged that previously
she considered appellant to be her “boyfriend” and that she engaged
in multiple sexual encounters with him, “probably” more than 20
times, “it could have been” over a hundred times. C.D. further
acknowledged that she did not immediately report the sexual assault
that occurred on the day in question.
{¶12} Sexual Assault Nurse Examiner Janell Randolph testified
that she completed the victim’s sexual assault examination,
photographed her injuries, took DNA swabs and noted “multiple 7 ROSS, 20CA3731
bruising um, to bi-both of her arms, both of her legs, * * * she
had bruising to one eye, * * * she had a puncture wound to her left
wrist, she had puncture wound to her left thigh also.” Randolph
testified that C.D. told her that “Clarence Kuntz * * * snatched
her out of a friend’s car about five a.m. on a Sunday morning. * *
* he took her to an area behind the mental health building * * *
and he beat the crap * * * out of her, * * * that she was beaten, *
* * kicked, punched, * * * strangled, * * * sexually assaulted * *
* forced to do sexual acts to him * * * she was then * * * taken to
a viaduct in Chillicothe * * * she was tried to um, be sold by him
to other people.”
{¶13} Chillicothe Police Detective Christopher Fyffe played for
the jury appellant’s interview and, when appellant told Fyffe that
the victim slapped him, he said he then he slapped her. The
surveillance video, however, did not match appellant’s statement.
Fyffe also confirmed that appellant and the victim visited urgent
care two days before the assault. At this juncture, the state
rested and the trial court also overruled appellant’s Crim.R. 29
motion for judgment of acquittal.
{¶14} The defense presented its case and called several
witnesses, including appellant’s brother, Chris Kuntz, who
testified that appellant and C.D. visited his house “every two to 8 ROSS, 20CA3731
three days.” Kuntz said they came to his house on May 15, 2020,
with another younger girl, and that C.D. appeared to be “on
something.” Kuntz also said he was familiar with the allegations
against his brother, that he talked to him “once in a while and it
was on Facebook that they were looking for him for it.” On cross-
examination, Kuntz acknowledged he was unsure of the exact date
appellant and the victim visited his home. Also, Kuntz stated he
knew about appellant’s 2011 trafficking drug convictions.
{¶15} Clyde Johnson testified that he knows appellant because
“my cousin * * * has a baby with one of his brothers, or something
like that.” Johnson said appellant “slept out in the hallway with
his girlfriend (C.D.), I think one or two nights, maybe.” Johnson
thought it was “May 17th, or 18th, I think.”
{¶16} Alyssa Stevens, Clyde Johnson’s girlfriend, testified she
met appellant through her family and met C.D. through appellant.
Stevens stated that C.D. and appellant stayed in the hallway of
their apartment two nights during the time period in question.
{¶17} Nurse Practitioner William Bedillion, Jr. testified that,
two days before the incident, he worked at Family Urgent Care when
appellant and C.D. visited and the two appeared “almost a bit jolly
and giddy with each other.”
{¶18} After hearing the evidence and counsels’ arguments, the 9 ROSS, 20CA3731
jury found appellant guilty as charged in the indictment. At
sentencing, the trial court: (1) merged counts one (kidnapping) and
two (kidnapping), (2) sentenced appellant to serve a minimum term
of 10 years and a maximum term of 15 years in prison on count one,
(3) sentenced appellant to serve a minimum of ten years and maximum
of 15 years on count three (rape), (4) sentenced appellant to serve
90 days each on counts four through nineteen (assault), to be
served concurrently to one another, (5) ordered counts one and
three to be served concurrently to one another, as well as
concurrently to counts four through nineteen, (6) found appellant
to be a Tier III Sex Offender, (7) advised appellant of the Reagan
Tokes law, and (8) sentenced appellant to serve a mandatory five-
year post-release control term. This appeal followed.
I.
{¶19} In his first assignment of error, appellant asserts that
the trial court erred by failing to merge his convictions for
kidnapping and rape because, appellant argues, those offenses
stemmed for the same conduct, with a single animus, and with
similar import and significance. In particular, appellant argues
that his purpose in committing the kidnaping offense was to engage
in sexual activity with the victim against her will and this animus
is the same as in the rape offense because appellant purposely 10 ROSS, 20CA3731
compelled the victim to submit to sexual conduct by force or threat
of force.
{¶20} In response, the state argues that appellant removed the
victim from a car on “one street and dragged her to a secluded
location some ways away,” “tortured, assaulted, and threatened her
for an hour and a half before and during the rape and did not
permit her to leave when it was completed.” Afterward, the state
points out that appellant took the victim “to various locations
throughout the city, from the Floyd Simantel, to the AmVets, to at
one time the Pilot, to another near the viaduct under the bridge
and another to the Valero Gas Station - the movement is substantial
so as to demonstrate a significance independent of the other
offense.” The state thus contends that, “[r]ather than a brief
kidnapping,” * * * “the video in the case lasted a total of an hour
and half, and the kidnapping lasted almost three days, when the
victim was finally able to get away and call police.” Further, the
state argues that appellant used force to perpetuate the sexual
conduct - first forcing appellant out of a car and into a secluded
area behind a building, then using force and threats and physical
torture for almost an hour and a half during the rape. Thus, the
state contends the victim’s movement from the car to the concealed
AmVets alleyway was more than incidental; rather, it substantially 11 ROSS, 20CA3731
increased the risk of harm by taking C.D. from a public place,
where exposure could limit the harm, to a place where appellant
could commit the offense unimpeded. Therefore, the state argues,
the restraint and force used to drag the victim to a secluded
location is separate and distinct from the force exercised during
the rape. Consequently, the state maintains that appellant’s rape
and kidnapping convictions are not allied offenses.
{¶21} “R.C. 2941.25 ‘codifies the protections of the Double
Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution,
which prohibits multiple punishments for the same offense.’” State
v. Osman, 4th Dist. Athens No. 13CA22, 2014-Ohio-294, ¶ 17, quoting
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 23; State v. Jones, 4th Dist. Hocking Nos. 20CA2, 20CA3,
20CA4, 2021-Ohio-2601, ¶ 26. R.C. 2941.25, the allied offense
statute, outlines when a trial court may impose multiple
punishments:
(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, 12 ROSS, 20CA3731
the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶22} In general, an appellate court should apply a de novo
review of a trial court’s R.C. 2941.25 merger determination. State
v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶
28. Appellate courts should therefore “independently determine,
without deference to the conclusion of the trial court, whether the
facts satisfy the applicable legal standard.” Id. at ¶ 26.
{¶23} In the case sub judice, appellant and the state agreed
that the two kidnapping offenses merged. Appellant, however, did
not raise at sentencing the issue of merger of the kidnapping and
rape offense. Thus, appellant forfeited all but plain error. State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21,
28. Crim.R. 52(B) defines plain error as, “Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court.” To establish plain error,
appellant must show that “but for a plain or obvious error, the
outcome of the proceeding would have been otherwise, and reversal
must be necessary to correct a manifest miscarriage of justice.”
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 16. “To constitute plain error under Crim.R. 52(B), the 13 ROSS, 20CA3731
defendant must demonstrate (1) an error, i.e., a deviation from a
legal rule, (2) that the error constitutes an obvious defect in the
trial proceedings, and (3) that the error must have affected
substantial rights, i.e., the error must have affected the outcome
of the trial.” State v. Wycuff, 4th Dist. Pickaway No. 19CA28,
2020-Ohio-5320, ¶ 13, citing State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. Courts take notice of plain
error with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice. Rogers at ¶ 23,
citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. See also State v. Lewis, 4th Dist.
Ross No. 14CA3467, 2015-Ohio-4303, ¶ 9; Wycuff at ¶ 13. However,
because a trial court’s duty to merge allied offenses is mandatory,
not discretionary, the failure to merge allied offenses affects a
substantial right. State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923. Consequently, a failure of a trial court to
merge allied offenses when the record is clear that multiple
offenses are allied offenses under R.C. 2941.25 constitutes plain
error.
{¶24} Recently, we observed in State v. Conrad, 4th Dist.
Hocking No. 18CA4, 2019-Ohio-263 that the Supreme Court of Ohio 14 ROSS, 20CA3731
examined the allied offense doctrine in State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-994, 34 N.E.3d 892, and crafted a tripartite
test to determine when multiple criminal offenses must merge under
R.C. 2941.25. “In determining whether offenses are allied offenses
of similar import within the meaning of R.C. 2941.25, courts must
evaluate three separate factors - the conduct, the animus, and the
import.” Id. at paragraph one of the syllabus. Further, “[t]wo or
more offenses of dissimilar import exist within the meaning of R.C.
2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each
offense is separate and identifiable.” Id., paragraph two of the
syllabus.
{¶25} The Ruff court wrote that “when determining whether
offenses are allied offenses of similar import within the meaning of
R.C. 2941.25, courts must ask three questions when the defendant’s
conduct supports multiple offenses: (1) Were the offenses dissimilar
in import or significance? (2) Were they committed separately? And
(3) Were they committed with separate animus or motivation? An
affirmative answer to any of the above will permit separate
convictions.” Ruff at ¶ 31. Further, unlike at trial when the
state bears the burden of proof, at sentencing “[t]he defendant [Cite as State v. Kuntz, 2022-Ohio-3376.]
bears the burden of establishing his entitlement to the protection,
provided by R.C. 2941.25, against multiple punishments for a single
criminal act.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-
4982, 999 N.E.2d 661, ¶ 18, quoting State v. Mughni, 33 Ohio St.3d
65, 67, 514 N.E.2d 870 (1987); Conrad at ¶ 35.
{¶26} In Jones, supra, 2021-Ohio-2601, the Supreme Court of Ohio
again addressed the merger of kidnapping and rape convictions
discussed in State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345
(1979), and recognized that “implicit within every forcible rape
R.C. 2907.02(A)(1) is a kidnapping.” Id. at 130. Logan instructed
whether the rape and kidnapping convictions should merge:
The primary issue * * * is whether the restraint or movement of the victim is merely incidental to the separate underlying crime or, instead, whether it has a significance independent of the other offense. In the instant case, the restraint and movement of the victim had no significance apart from facilitating the rape. The detention was brief, the movement was slight, and the victim was released immediately following the commission of the rape. In such circumstances, we cannot say that appellant had a separate animus to commit kidnapping.
Id. at 135.
{¶27} “Ohio courts still apply the test found in [Logan] to
determine whether rape and kidnapping convictions merge for
sentencing even though this test predates Ruff.” State v. Thacker,
4th Dist. Lawrence No. 18CA21, 2020-Ohio-4620, ¶ 125. Thus, this [Cite as State v. Kuntz, 2022-Ohio-3376.]
court adopted the Logan “guidelines” to determine when kidnapping
and similar offenses - like rape- are committed with the same animus
and must merge. Id., quoting Logan at syllabus. “Therefore,
kidnapping and rape convictions merge if the restraint of the victim
is merely incidental to the rape, but do not merge if the restraint
subjected the victim to a harm beyond that of the rape.” Jones,
supra, at ¶ 30.
{¶28} When examining this issue, it appears that merger cases
vary from a kidnapping that is incidental to a rape when the
victim’s movement is slight, occurs close in time to the rape, and
facilitates the rape, to cases at the other end of the spectrum when
the kidnapping is not incidental to the rape because the victim’s
movement is significant, occurred longer in time from the rape, and
occurred other than to facilitate the rape. “More than once the
Ohio Supreme Court has recognize[d] that this analysis may be
sometimes difficult to perform and may result in varying results for
the same set of offenses in different cases.” Ruff, 143 Ohio St.3d
114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 32, quoting State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52;
State v. DeWees, 2018-Ohio-1677, 111 N.E.3d 334 (11th Dist.) ¶ 43.
{¶29} For example, in Jones, supra, at ¶ 32, the defendant
forcibly pinned the victim on the stairs, restrained her liberty, [Cite as State v. Kuntz, 2022-Ohio-3376.]
and demanded by threat of force that she engage in a sex act. The
evidence revealed that the kidnapping involved a relatively brief
restraint with no asportation, committed to facilitate the rape, and
did not subject the victim to additional danger aside from the rape.
Furthermore, in State v. Merz, 1st Dist. Hamilton No. C-200152,
2021-Ohio-2093, the defendant, under the guise of taking his
stepdaughter arrowhead-hunting, drove to a remote location, began to
kiss her neck, pushed her into a truck, forced himself on her and
groped her. The First District applying Logan, concluded that the
defendant’s gross sexual imposition and abduction convictions should
merge. The court concluded that the abduction was “merely
incidental” to the gross sexual imposition and the defendant did not
have a separate animus for the abduction because his immediate
motive in restraining his stepdaughter was to sexually assault her.
Id. at ¶ 14. Consequently, the gross sexual imposition and
abduction offenses are not of dissimilar import based on a lack of
separate and identifiable harm, and not committed separately. Id.
at ¶ 15-16.
{¶30} Other examples of cases that include kidnapping incidental
to rape or other sexual assault offenses include State v. Lundy, 8th
Dist. Cuyahoga No. 105119, 2017-Ohio-9155, ¶ 33-34 (act brief and
movement slight so kidnapping incidental to the rape and no separate [Cite as State v. Kuntz, 2022-Ohio-3376.]
animus for kidnapping); State v. Johnson, 2014-Ohio-4750, 22 N.E.3d
249, ¶ 108 (3d Dist.) (moving victim from alley to porch
demonstrated victim’s restraint and movement had no significance
apart from facilitating rape); State v. Pore, 5th Dist. Stark No.
2011-CA-00190, 2012-Ohio-3660 (kidnapping and rape merge when
defendant threatened victim with knife, moved her to bedroom to
undress, moved to living room to lock door, then moved to bedroom
for rape); State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-
169 (gross sexual imposition and kidnapping merge because victim’s
movement from hallway to bedroom incidental to gross sexual
imposition).
{¶31} Many cases, however, support the proposition that
kidnapping and rape should not merge when a kidnapping serves the
distinct purpose of concealment of the rape. When a defendant moved
the victim from an outside stairway into his apartment, then to his
bedroom, the Supreme Court of Ohio found a separate animus for the
kidnapping. State v. Rogers, 17 Ohio St.3d 174, 181–182, 478 N.E.2d
984 (1985), vacated on other grounds, Rogers v. Ohio, 474 U.S. 1002,
106 S.Ct. 518, 88 L.Ed.2d 452 (1985).
{¶32} In State v. DeWees, 2018-Ohio-1677, 111 N.E.3d 334 (11th
Dist.), the defendant grabbed the victim’s hair and neck, dragged
her up an incline six feet from a walking trail, then attempted to [Cite as State v. Kuntz, 2022-Ohio-3376.]
rape her. The Eleventh District held that the kidnapping and
attempted rape resulted from distinct conduct and motivation because
the act of dragging the victim neither directly facilitated nor was
immediately motivated by the desire to commit the rape, but instead
served the purpose of secretive confinement. Id. at ¶ 44.
{¶33} In State v. Zanders, 8th Dist. Cuyahoga No. 99146, 2013-
Ohio-3619, the defendant dragged the victim by her hair across a
street, through an open field and to a secluded “cubbyhole” in a
yard behind a building. The Eighth District concluded that this
restraint and movement was not incidental to the rape. Instead, the
restraint and force used to drag the victim to a secluded location
was separate and distinct from the force exercised during acts of
the rape. Indeed, the victim’s removal to a secluded area subjected
the victim to a substantial increase in her risk of harm, separate
and apart from the risk involved in the rape.
{¶34} In State v. Merryman, 4th Dist. Athens No. 12CA28, 2013-
Ohio-4810, the defendant moved the victim from hallway, to bathroom,
then to a locked stall before he committed the rape. This court
concluded that the defendant “could have performed oral sex upon the
victim in the hallway but Merryman had a separate animus for the
kidnapping, i.e., he wanted his actions to be secret; this separate
animus supports a separate conviction for kidnapping.” Id. at ¶ 52. [Cite as State v. Kuntz, 2022-Ohio-3376.]
Consequently, in Merryman we concluded that the offenses of rape and
kidnapping did not merge. See also, State v. Helms, 7th Dist.
Mahoning No. 15 MA 0183, 2017-Ohio-4383 (defendant drove victim to
different location for rape, thus rape and kidnapping committed with
separate animus); State v. Terry, 10th Dist. Franklin No. 15AP-176,
2015-Ohio-3847, ¶ 16 (victim dragged around corner from residence
and forced into dark, open garage - “ movement of the victim prior
to the rape, although not long in duration, * * * was not merely
incidental to the rape”); State v. Howard, 9th Dist. Lorain No.
13CA010372, 2014-Ohio-3373, ¶ 66 (kidnapping and rape committed
separately, or with separate animus, when defendant accosted child
victim on public street, demanded she go with him or he would shoot
her, then “took her to the privacy of his home, where no one else
was present. Secretive confinement may signify a separate
animus.”); State v. Dean, 2018-Ohio-1740, 112 N.E.3d 32 (6th Dist.),
¶ 65-66 (victim suffered separate harm from separate animus from
rape when defendant grabbed victim on the street, moved several city
blocks after showed gun, then confined her in abandoned house’s dark
patio before the rape); State v. Craig, 110 Ohio St.3d 306, 2006-
Ohio-4571, 853 N.E.2d 621, ¶ 118 (evidence supports convictions for
rape and kidnapping when defendant abducted victim, took her to
empty apartment at other location then raped and killed her); State [Cite as State v. Kuntz, 2022-Ohio-3376.]
v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 110
(defendant lured victim to a house to give her clothing but then
raped her - kidnapping and rape do not merge because victim
kidnapped by act of deception significantly independent from the
asportation incidental to the rape).
{¶35} In the case sub judice, appellant concedes that the victim
“was arguably restrained in the rampway behind the AmVets for
approximately two hours,” but contends this restraint was merely
incidental (i.e., had no separate animus) for the rape. Thus, the
central question is whether appellant harbored a separate animus for
the two offenses. “Animus” means “‘purpose, or more properly,
immediate motive’ and ‘requires us to examine the defendant’s mental
state in determining whether two or more offenses may be chiseled
from the same criminal conduct.’” Bailey, 1st Dist. Hamilton No. C-
140129, 2015-Ohio-2997, at ¶ 86, quoting State v. Logan, 60 Ohio
St.2d 131, 397 N.E.2d 1345 (1979). To determine animus, or a
defendant’s motive or purpose, a court must dissect the facts and
circumstances in evidence, including the means used to commit the
offense. Id.
{¶36} Our review of the evidence adduced at trial reveals that
the victim sat in a parked car when appellant “grabbed” her arm and
“pulled [her] out of the car”...“he just grabbed my arm and yanked,” [Cite as State v. Kuntz, 2022-Ohio-3376.]
then took the victim to a “little cement walkway” behind the AmVets
building “like thirty seconds away,” to a secluded area where the
rape occurred. We believe that this conduct indicates a separate
animus for the kidnapping and rape offenses. Here, appellant
grabbed the victim, removed her from a car in a parking lot and
forced her some distance to a rampway in an alley behind a building.
Once again, as the AmVets witness stated about that location, “if
you’re down in the bottom of it [the ramp way] nobody can see ya.”
Like Zanders, in the case at bar appellant moved the victim from a
public place to a secluded location, then confined and assaulted
her. We believe that, under these facts, the victim, like the
victim in Zanders, suffered harm separate and apart from the rape
when appellant moved the victim to a secluded location before he
committed the rape. We believe that the case sub judice is more
similar to DeWees, supra, 2018-Ohio-1677, 111 N.E.3d 334 (11th
Dist.) and the line of cases that emphasize secretive confinement.
When an offender moves a victim from a public place to a secluded
area, the removal limits exposure and subjects the victim to a
substantial increase in the risk of harm separate and apart from the
harm involved in the rape.
{¶37} Therefore, because a separate animus exists for the rape
and kidnapping offenses, the offenses should not merge. Although [Cite as State v. Kuntz, 2022-Ohio-3376.]
the kidnapping and rape convictions involved a single victim, the
harm caused by the two offenses is separate and identifiable.
Because appellant’s conduct shows that appellant committed these
offenses with separate animus, under Ruff the offenses should not
merge. The fact that an offender may have the ultimate goal to
commit rape and formulated a plan of action in furtherance of that
goal should not absolve an offender of responsibility for all other
crimes committed in the furtherance of that goal.
{¶38} Thus, based upon the foregoing reasons, we overrule
appellant’s first assignment of error.
II.
{¶39} In his second assignment of error, appellant asserts that
he did not receive the effective assistance of counsel when his
counsel failed to argue that his convictions are allied offenses of
similar import. However, because we concluded that appellant’s
convictions do not constitute allied offenses of similar import,
this assignment of error is moot.
{¶40} Thus, based upon the foregoing reasons, we overrule
appellant’s second assignment of error.
III.
{¶41} In his third assignment of error, appellant asserts that
his rape and kidnapping convictions are against the manifest weight [Cite as State v. Kuntz, 2022-Ohio-3376.]
of the evidence. Although appellant does acknowledge that
sufficient evidence supports his convictions, he nevertheless
maintains they are against the manifest weight of the evidence. In
particular, appellant argues that the victim’s testimony is “riddled
with inconsistencies, evasion, and contradictions,” and, thus, his
convictions cannot be fairly said to have attained the high degree
of probative force and certainty required for a criminal conviction.
{¶42} In State v. Smith, 2020-Ohio-5316, 162 N.E.3d 898, (4th
Dist.) ¶ 30, this court wrote that to determine whether a criminal
conviction is against the manifest weight of the evidence, “we must
review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of
justice that reversal of the conviction is necessary.” Smith at ¶
31, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶ 119; State v. Brown, 4th Dist. Athens No. 09CA3, 2009-
Ohio-5390. In order to satisfy this standard, the state must
introduce substantial evidence on all the elements of an offense so
the jury can find guilt beyond a reasonable doubt. See State v.
Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304, syllabus (1988). [Cite as State v. Kuntz, 2022-Ohio-3376.]
{¶43} In the case sub judice, the state argues that it adduced
ample evidence at trial to prove that appellant kidnapped C.D. when
he pulled her from a parked car, forced her to a secretive place
some distance away in an area not visible to the general public,
then threatened her, assaulted her, stabbed her with a screwdriver,
then further restrained her and raped her. The state claims that
ample evidence of rape and kidnapping exists because appellant
exerted force for 45 minutes while he assaulted her multiple times,
including strangling her, pushing her against a wall, picking her up
by her hair, shaking her, punching her stomach, slapping her,
attempting to break her leg and telling her she is his sex slave.
{¶44} Appellant, however, contends that C.D.’s often
inconsistent testimony, raises questions about her memory and
credibility. After our review we recognize that, although the
victim’s testimony may have been, at times, inconsistent, this
argument ignores other ample evidence, including surveillance video
and witness testimony. Furthermore, while appellant argues that
C.D. minimized the fact that she had engaged in sexual relations
with appellant on prior occasions, the occasion relevant to the case
at bar is what occurred on the date in question in this particular
case. Obviously, the jury heard the witness testimony and opted to
believe the state’s version of the facts, that appellant kidnapped [Cite as State v. Kuntz, 2022-Ohio-3376.]
and raped the victim. A jury, sitting as the trier of fact, may
choose to believe all, part or none of the testimony of any witness.
Here, the jury had the opportunity to observe all witnesses and
their testimony, including the victim’s testimony, and to assess the
credibility of each witness. Therefore, in the case sub judice we
cannot conclude that the jury lost its way when it chose to credit
C.D.’s testimony over appellant’s. Once again, although we
recognize that the record does reveal some inconsistencies, none are
so significant as to call the jury’s verdict into doubt. State v.
Picklesimer, 4th Dist. Pickaway No. 14CA17, 2015-Ohio-1965, ¶ 11,
citing State v. Weiss, 4th Dist. Athens No. 09CA30, 2010-Ohio-4509,
¶ 13.
{¶45} Accordingly, based upon the foregoing reasons, we overrule
appellant’s third assignment of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED. ROSS, 20CA3731
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant the 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 Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45- day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:______________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal ROSS, 20CA3731
28 commences from the date of filing with the clerk.