State v. Sanderson

2019 Ohio 3589

• Court: Ohio Court of Appeals
• Decided: September 6, 2019
• Docket: 28149
• Status: Published

Opinion

[Cite as State v. Sanderson, 2019-Ohio-3589.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28149 : v. : Trial Court Case No. 2017-CR-2588 : JUSTIN SANDERSON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 6th day of September, 2019.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Justin Sanderson appeals his conviction and sentence

for the following offenses: three counts of rape, in violation of R.C. 2907.02(A)(2), all

felonies of the first degree; seven counts of sexual battery, in violation of R.C.

2907.03(A)(6), all felonies of the third degree; two counts of gross sexual imposition (GSI)

in violation of R.C. 2907.05(A)(1), both felonies of the fourth degree; two counts of

kidnapping, in violation of R.C. 2905.01(A)(4), both felonies of the first degree; one count

of aggravated burglary, in violation of R.C. 2911.11(A)(2), a felony of the first degree; and

four counts of interfering with civil rights, in violation of R.C. 2921.45(A), all misdemeanors

of the first degree. Each count of kidnapping was accompanied by a sexual motivation

specification pursuant to R.C. 2941.147. Sanderson filed a timely notice of appeal with

this Court on October 2, 2018.

{¶ 2} The record establishes that in the late spring of 2015, Sanderson began

working as a security officer at a company called G4S. Mark Wysong testified that he

was the owner of G4S and that he hired Sanderson. Wysong testified that he was also

the Chief of the Phillipsburg Police Department (hereinafter “PPD”). In November 2015,

Wysong hired Sanderson as a part-time police officer at the PPD. The offenses for which

Sanderson was arrested and later convicted occurred during a six-week period in 2017

while he was employed as a police officer in Phillipsburg.

Events of May 19-20, 2017

{¶ 3} The record establishes that late on the night of May 19, 2017, K.W., 22 years

old, was driving back to her residence in Greenville, Ohio, after a night spent with friends

in the Oregon District in downtown Dayton, Ohio. Sometime after midnight on May 20,

2017, Sanderson initiated a traffic stop of K.W. as she traveled on State Route 49. K.W. -3-

testified that she was very anxious upon being pulled over as she had been drinking

alcohol and did not have a driver’s license. After K.W. informed Sanderson that she did

not have a driver’s license, he removed her from the vehicle, handcuffed her with her

hands behind her back, and placed her in the rear of his cruiser.

{¶ 4} Sanderson drove K.W. to the Phillipsburg Municipal Building, where the

police station is also located. K.W. testified that there was no one else present at the

police station and most of the lights had been turned off when they arrived. K.W. testified

that Sanderson had her perform a single field sobriety test, the “walk and turn.” K.W.

remained handcuffed while she performed the test. Sanderson informed K.W. that she

failed the test and asked her what he “should do about what was going on.” Tr. 444.

K.W. testified that at this point she was crying and very frightened because she thought

she was going to jail. K.W. testified that she was also confused because Sanderson was

asking her how he should handle the situation.

{¶ 5} Sanderson asked K.W. if he could pat her down. K.W. testified that

Sanderson stood behind her and started to pat her down. K.W. testified that Sanderson

then pulled up her dress, pulled down her shorts and underwear, and started kissing her

buttock. Thereafter, Sanderson directed a still-handcuffed K.W. to sit on the edge of a

desk. Once K.W. sat down, Sanderson began performing oral sex on her. K.W.

testified that Sanderson then bent her over the desk and inserted his penis into her vagina

from behind. K.W. testified that Sanderson removed his clothes and took off her dress.

Sanderson then carried her into another room in the station and continued having vaginal

intercourse with her on the floor.

{¶ 6} The sexual assault ended a short time later, and Sanderson and K.W. got -4-

dressed. K.W. testified that Sanderson then transported her back to where she left her

vehicle. Sanderson also told K.W. to follow him back to her residence in Greenville so

that she would not get pulled over by any other police officers patrolling the area. While

she was driving from Phillipsburg to her home in Greenville, K.W. called her mother, T.M.,

on her cellphone. K.W. informed T.M. that she had been pulled over in Phillipsburg on

the way to the residence they shared and had been raped by a police officer. K.W. also

informed T.M. that the officer who had raped her was following her home. T.M. testified

that during their conversation, K.W. sounded very upset and was crying.

{¶ 7} When they arrived at K.W.’s residence, Sanderson stopped his cruiser at the

end of her driveway and asked her for her phone number. K.W. testified that she felt

compelled to give Sanderson her phone number because she was in shock from being

assaulted and because she was scared that Sanderson might attempt to arrest her for

driving while intoxicated and driving without a driver’s license. After K.W. got home, T.M.

looked out the window and observed a police cruiser parked at the end of the driveway.

Events of June 2-3, 2017

{¶ 8} On the evening of June 2, 2017, T.B. attended a pool party at a friend’s

residence in Huber Heights, Ohio. T.B. left the party at approximately 11:30 p.m. T.B.

testified that she observed a Phillipsburg police cruiser parked on the side of State Route

49 shortly after midnight near her residence. T.B. testified that she arrived at her

residence and had been inside approximately ten minutes when she heard a knock on

her front door. When she answered the door, she observed Sanderson, whom she

recognized as a Phillipsburg police officer. Sanderson asked T.B. for her name. T.B.

testified that Sanderson then asked her if she was aware that her husband had an -5-

outstanding warrant for his arrest. T.B. informed Sanderson that she was aware of the

warrant for her husband for unpaid fines levied by Vandalia Municipal Court, but that he

was currently at work.

{¶ 9} T.B. testified that at this point, Sanderson informed her that she also had an

outstanding warrant for her arrest.1 T.B. testified that she told Sanderson that she was

unaware of any warrant and asked him to produce documentation confirming that a

warrant existed. Sanderson replied, “We’ll get to that.” Tr. 554. Sanderson then told

T.B. to pull out her bra, and he proceeded to pat her down under her shirt. T.B. testified

that Sanderson also pulled on her belt loop and asked her if she was wearing any

underwear. At this point, Sanderson placed T.B. in handcuffs behind her back and led

her out to his police cruiser. Before leaving, T.B. asked Sanderson if she could retrieve

her cellphone, but he told her not to worry because they would be returning to her

residence at a later time. Sanderson then placed T.B. in the back of his cruiser and

drove to the police station.

{¶ 10} Upon arriving at the station, T.B. again asked Sanderson to produce

documentation regarding the alleged warrant. Sanderson stated that he would try to

locate the warrant, and he left T.B. sitting in a room for a short time. T.B. testified that

when Sanderson came back, he removed her handcuffs and began patting her down

again. T.B. testified that she believed it was a great deal more intrusive than was

necessary. T.B. testified that Sanderson pulled on her bra and began touching her

breasts. T.B. testified that she tried to pull away, and Sanderson stopped and sat down

1The record establishes that T.B. did in fact have an outstanding warrant through Eaton Municipal Court. -6-

in a chair facing her. T.B. testified that at this point, she was crying and praying out loud.

Sanderson told T.B. to calm down and stated “jails not that bad, it’s not that scary.” Tr.

571. Sanderson then left the room again.

{¶ 11} When Sanderson returned, he handcuffed T.B. again. T.B. testified that

she was very scared at this point and told Sanderson “just take me to jail.” Tr. 573.

Sanderson asked T.B., “What do you suggest?” Id. T.B. testified that she asked,

“Suggest for what?” Sanderson replied, “To make this go away.” Id. Sanderson also

told T.B. “you may not realize how hot you are.” Tr. 576. Sanderson then ordered T.B.

to stand up and turn around. Sanderson stood behind her and began running his hands

down her and around to the front of her body. T.B. testified that he grabbed her breasts,

unbuttoned the top of her shorts, and stuck his hand down her pants. T.B. testified that

Sanderson then digitally penetrated her vagina, and she pulled away, stating “she was

not that kind of girl” and to “just take her to jail.” Tr. 578.

{¶ 12} At this point, Sanderson placed T.B. back in his cruiser and drove her back

to her residence. Before letting her out of the cruiser, Sanderson told T.B. to resolve the

outstanding warrant. Sanderson also told her that he would check on the status of the

warrant the next time he was on duty, and if had not been resolved, he would come back.

T.B. exited the cruiser and ran into her residence. Once inside, she locked the door and

called her husband to inform him of what had happened.

{¶ 13} T.B. testified that Sanderson came to her residence the following week on

Friday, June 9, 2017, at approximately 11:30 p.m. T.B. testified that she was at home

with her daughter at the time. Sanderson informed T.B. that he was aware that she had

resolved her warrant. T.B. testified that she told Sanderson to never return to her -7-

residence for any reason, and that she would call the Clay Township Police or the

Montgomery County Sheriff if he did.

Events of June 27-28, 2017

{¶ 14} K.T. and T.U. were prostitutes who advertised their services as a duo on an

internet site called Backpage.com. T.U. created the advertisement. On June 27, 2017,

a male identifying himself as “Slick Johnson” responded to T.U.’s advertisement and sent

a photograph of himself as well. The man in the photograph was identified by K.T. and

T.U. as Sanderson. In his response to the advertisement, Sanderson offered the two

women $160 for their services and agreed to meet them at the Knights Inn hotel in

Vandalia, Ohio, in Room 165.

{¶ 15} While he was in uniform and on patrol duty that night, Sanderson traveled

in his cruiser from Phillipsburg to the Knights Inn in Vandalia. Upon arriving at the hotel,

Sanderson went to the front desk and placed a pair of handcuffs on the counter in front

of the clerk, H.P. H.P. testified that Sanderson asked for the key to Room 165.

Sanderson informed H.P. that he was conducting a “prostitution investigation.” H.P.

testified that he did not want to disobey an order from a uniformed police officer, so he

gave Sanderson the hotel’s master key.

{¶ 16} Sanderson went to Room 165 and knocked on the door. K.T. testified that

she looked through the peephole and observed a uniformed police officer. K.T. did not

open the door. Rather, K.T. informed T.U. that there was police officer at the door and

to therefore be quiet. When the women refused to answer the door, Sanderson used the

master key to gain entrance to the hotel room. K.T. testified that Sanderson walked into

the room and immediately looked in the bathroom, asking the women where their pimp -8-

was. K.T. testified that she informed Sanderson that they did not have a pimp, but were

in business for themselves. Sanderson then asked the women for identification. K.T.

testified that she recognized Sanderson from the photograph that he sent earlier that day.

Sanderson took the women’s identification, radioed in to dispatch, and wrote some

information down in “little black book” that he kept in his pocket. Tr. 182. K.T. testified

that Sanderson was in full police uniform and was armed with a handgun and a Taser.

{¶ 17} At this point, Sanderson ordered the women to lift up their dresses so that

he could search them. K.T. testified that he made them show their bras and bare skin.

T.U. testified that Sanderson ran his finger along the inside of the waistband of her see-

through underwear. Sanderson then asked the women if there were any drugs in the

room. K.T. testified that she responded by taking a small baggie of marijuana out of a

Swisher Sweets box located on the nightstand and throwing it on the middle of the bed.

K.T. testified that she had been arrested for prostitution in the past, and she thought that

Sanderson was behaving strangely for a police officer under the circumstances.

{¶ 18} K.T. testified that Sanderson then placed her in handcuffs with her hands in

front of her body, and he used foot shackles to handcuff T.U., also with her hands in front

of her body. T.U. testified that Sanderson handcuffed them because K.T. was “talking

too much and making him nervous.” Tr. 258. Sanderson eventually removed the

handcuffs from the women. K.T. testified that Sanderson told them that he would not

arrest them if they promised to take down the advertisement on Backpage.com, and if

they “show[ed] him their boobs.” Tr. 262. T.U. testified that they complied by taking down

the Backpage.com advertisements in his presence and by both women revealing their

breasts to him. -9-

{¶ 19} Thereafter, Sanderson left the room and returned the master key to the front

desk. K.T. testified that Sanderson returned approximately five minutes later and

knocked on the door. K.T. opened the door and allowed Sanderson into the room.

Once inside, Sanderson asked the women if they “wanted to have fun off the record.” Tr.

265. Both K.T. and T.U. were still afraid that Sanderson was going to arrest them, so

they responded affirmatively. K.T. also testified that she had been violently raped in the

past. Therefore, K.T. testified that she did not want to have to fight Sanderson off or get

raped at gunpoint if she refused his advances. K.T. testified that Sanderson took off his

pants and sat down on the bed, at which point K.T. and T.U. took turns performing fellatio

on him. Sanderson then told K.T. and T.U. to get on their hands and knees after which

he penetrated both women vaginally from behind with his penis.

{¶ 20} K.T. testified that Sanderson stopped the assault shortly thereafter, stating

that he had to get back to work before his boss discovered his absence. Sanderson got

dressed and left the room. T.U. testified that after Sanderson was gone, she and K.T.

were both shocked but agreed that they would investigate whether Sanderson was

actually a police officer. As previously stated, K.T. testified that she had been arrested

for prostitution multiple times in the past and was familiar with detectives from the Dayton

Police Department’s vice squad. Therefore, K.T. contacted Detective John Howard and

informed him of the events surrounding Sanderson’s sexual assault of her and T.U. K.T.

also gave Detective Howard the photograph of “Slick Johnson” that she had been sent.

Using this information, Detective Howard was able to identify Sanderson as a suspect.

Detective Howard shared this information with the FBI and Vandalia Police Sergeant

Thomas Vallery. -10-

{¶ 21} On July 6, 2017, Vandalia Police Officer Cody Anderson was on patrol when

he observed a Phillipsburg Police cruiser in the parking lot of the Knights Inn. Having

been briefed on the investigation into Sanderson, he immediately contacted his superiors

regarding the presence of the Phillipsburg cruiser. Shortly thereafter, Sergeants Flynn

and Vallery arrived at the Knights Inn, where they arrested Sanderson and took him into

custody. Upon being questioned regarding his presence at the hotel in another

jurisdiction, Sanderson stated that he was conducting a human trafficking investigation.

Significantly, Phillipsburg Police Chief Wysong testified that Sanderson had never been

cleared to conduct a human trafficking investigation in Vandalia or anywhere else.

{¶ 22} When he was initially arrested on July 6, 2017, the police were still unaware

of Sanderson’s sexual assaults of K.W. and T.B. The record establishes that K.W. told

a friend about the assault, and after hearing about Sanderson’s arrest on the news, the

friend contacted Vandalia police. T.B.’s husband contacted a friend employed by the

Clay Township Police Department, Officer Martin Stringfellow, for advice on how to report

a rape committed by a police officer. When Officer Stringfellow heard about Sanderson’s

arrest on the news, he contacted the Vandalia police.

{¶ 23} Thereafter, on August 28, 2017, Sanderson was indicted for three counts of

rape (by force or threat of force), seven counts of sexual battery (other person in custody),

two counts of gross sexual imposition (by force or threat of force), two counts of

kidnapping (sexual motivation), one count of aggravated burglary (deadly weapon), two

counts of unauthorized use of a law enforcement gateway, and four counts of interfering

with civil rights. As previously stated, both kidnapping counts were accompanied by

sexual motivation specifications. At his arraignment on August 31, 2017, Sanderson -11-

pled not guilty to the charged offenses.

{¶ 24} On October 3, 2017, Sanderson filed a motion to suppress any statements

he made to police after being arrested and taken into custody. On December 19, 2017,

Sanderson filed a motion to withdraw his motion to suppress. On April 6, 2018,

Sanderson filed a waiver of his right to a jury trial.

{¶ 25} On August 20, 2018, the State dismissed the two counts of unauthorized

use of a law enforcement gateway (Counts XIV and XV). Sanderson’s bench trial began

on August 20 and ended on August 22, 2018. On August 29, 2018, the trial court filed

an entry finding Sanderson guilty of all of the remaining counts in the indictment. The

trial court also ordered a presentence investigation report (PSI).

{¶ 26} On September 12, 2018, the trial court sentenced Sanderson as follows:

K.W.

Count I – GSI – 18 months

Count II – Rape – 11 years mandatory

Count III- Sexual Battery – merged with Count II

Count IV – Rape – 11 years mandatory

Count V – Sexual Battery – merged with Count IV

Count VI – Kidnapping – 11 years

Count VII – Interference with Civil Rights. – 180 days

T.B.

Count VIII – Rape – 11 years mandatory

Count IX – Sexual Battery – merged with Count VIII

Count X – GSI – 18 months -12-

Count XI – Kidnapping – 11 years

Count XII - Interference with Civil Rights – 180 days

K.T. and T.U.

Count XIII – Aggravated Burglary – K.T. and T.U. – 10 years

Count XVI - Interference with Civil Rights – K.T. – 180 days

Count XVII - Interference with Civil Rights – T.U. – 180 days

Count XVIII – Sexual Battery – K.T. – 60 months

Count XIX – Sexual Battery – K.T. – 60 months

Count XX - Sexual Battery – T.U. – 60 months

Count XXI - Sexual Battery – T.U. – 60 months

{¶ 27} The trial court ordered the three rape convictions and two of the sexual

battery convictions to be served consecutively, and the other sentences to be served

concurrently, for an aggregate sentence of 43 years in prison. The trial court also

designated Sanderson as a Tier I (GSI), Tier II (Kidnapping), and Tier III (Rape) sex

offender.

{¶ 28} It is from this judgment that Sanderson now appeals.

{¶ 29} Sanderson’s first assignment of error is as follows:

SANDERSON’S CONVICTIONS ARE NOT SUPPORTED BY THE

SUFFICIENCY OF THE EVIDENCE AND ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 30} In his first assignment of error, Sanderson contends that his convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence. -13-

{¶ 31} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA

99, 2008-Ohio-4636, ¶ 12.

{¶ 32} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, 837 N.E.2d 315, ¶ 69. A claim that a verdict is against the manifest weight of the

evidence involves a different test. “ ‘The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’ ” (Citations omitted.) Id. at ¶ 71.

{¶ 33} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v. -14-

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

{¶ 34} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

Aggravated Burglary (Deadly Weapon)

{¶ 35} Sanderson was convicted of aggravated burglary (deadly weapon) (Count

XIII). With respect to this count, the indictment charged that Sanderson:

[B]y force, stealth or deception, did trespass in an occupied structure, to-

wit: HOTEL ROOM located at 7563 POE AVENUE, DAYTON, OHIO 45414

* * * when another person, other than an accomplice of the offender, was

present, with purpose to commit in the structure * * *, any criminal offense,

and did have a deadly weapon or dangerous ordnance, on or about his

person or under his control; contrary to the form of the statute (in violation

of Section 2911.11(A)(2) of the Ohio Revised Code) * * *.

Doc. #1, p. 5-6.

{¶ 36} R.C. 2911.11(A)(2) provides that:

No person, by force, stealth, or deception, shall trespass in an occupied

structure * * *, when another person other than an accomplice of the

offender is present, with purpose to commit in the structure * * * any criminal

offense, if any of the following apply:

***

(2) The offender has a deadly weapon or dangerous ordnance on or about -15-

the offender's person or under the offender's control.

{¶ 37} In its entry finding him guilty of aggravated burglary, the trial court found

beyond a reasonable doubt that Sanderson, while armed with his service weapon,

trespassed by force, stealth, or deception into an occupied structure, the hotel room

where K.T. and T.U. were present, and that he did so with purpose to commit a criminal

offense. On appeal, Sanderson argues that he did not need permission to enter the hotel

room because he was conducting a “human trafficking investigation” and therefore on

official police business. Sanderson also argues that he knew that K.T. and T.U. were

engaged in illegal activity inside the hotel room.

{¶ 38} As previously stated, H.P., the motel clerk, testified that he only handed

over the master key to Sanderson because he was scared to disobey the order of a police

officer. Additionally, when Sanderson initially approached the front desk, he laid his

handcuffs down on the counter in front of H.P. ostensibly to intimidate the clerk into giving

him a key to the room in which K.T. and T.U. were located. Sanderson also told H.P.

that he was conducting a “prostitution investigation.” It is undisputed that Sanderson

then used the master key to gain entrance to Room 165 without the consent of K.T. or

T.U.

{¶ 39} Upon review, we conclude that that viewed in a light most favorable to the

State, a reasonable factfinder could find from the evidence adduced at trial that

Sanderson’s “human trafficking investigation” was an illegal and deceptive means to gain

entry into K.T. and T.U.’s hotel room. Phillipsburg Police Chief Wysong testified that he

was unaware of Sanderson’s purported “human trafficking investigation” and did not give

Sanderson permission to conduct any such investigation. Chief Wysong testified that -16-

Sanderson did not have permission to travel to another jurisdiction to conduct any type of

investigation. Additionally, the record establishes that Sanderson failed to inform

anyone at the Phillipsburg Police Department that he was leaving his jurisdiction to travel

approximately 20 minutes to Vandalia. Sanderson’s daily log for June 27-28, 2017,

contains no mention of his purported “human trafficking investigation.” Significantly, the

evidence adduced at trial established that Sanderson falsified his daily log and

misrepresented his location to the Regional Dispatch Center while he was in Vandalia at

the hotel.

{¶ 40} In State v. Ramey, 2d Dist. Montgomery No. 27636, 2018-Ohio-3072, we

stated the following:

“Trespass” is defined by R.C. 2911.21(A), which states that “[n]o person,

without privilege to do so, shall * * * [k]nowingly enter or remain on the land

or premises of another.” “Force” is defined as “any violence, compulsion,

or constraint physically exerted by any means upon or against a person or

thing.” R.C. 2901.01(A)(1). “ ‘Force’ is satisfied by ‘any effort physically

exerted.’ ” State v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-

5498, ¶ 21, quoting State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-175,

947 N.E.2d 1281, ¶ 18 (9th Dist.). This court has held that “the effort

necessary to open a door, locked or unlocked, is sufficient to satisfy the

element of ‘force’ necessary to prove burglary.” State v. DeMoss, 2d Dist.

Champaign No. 2001-CA-5, 2002 WL 360581, *10 (Mar. 8, 2002), quoting

State v. Ford, 2d Dist. Montgomery No. 15374, 1996 WL 257442, *2 (May

17, 1996). -17-

Id. at 45.

{¶ 41} Both K.T. and T.U. testified that Sanderson did not have permission to enter

their hotel room. Furthermore, the “force” element of aggravated burglary was satisfied

when Sanderson opened the door to the hotel room and came inside. Finally,

Sanderson was armed with his service weapon clearly visible in a holster on his police

belt. It was irrelevant that he did not use or brandish the weapon in the presence of the

women. The evidence further established that Sanderson’s assertion that he was

conducting a “human trafficking investigation” was merely a deception on his part to gain

entry into the room for illicit purposes. Accordingly, the State adduced sufficient

evidence that Sanderson entered the women’s hotel room with the purpose to commit a

criminal offense, which he ultimately did. We conclude that there was sufficient evidence

in the record to support Sanderson’s conviction for aggravated burglary. We further

conclude that this is not an exceptional case requiring a reversal as being against the

manifest weight of the evidence.

Sexual Battery Against K.T. and T.U.

{¶ 42} Here, Sanderson argues that the evidence adduced at trial was insufficient

to support his convictions for sexual battery against K.T. and T.U., as proscribed by R.C.

2907.03(A)(6), which provides that “[n]o person shall engage in sexual conduct with

another, not the spouse of the offender, when * * * [t]he other person is in custody of law

or a patient in a hospital or other institution, and the offender has supervisory or

disciplinary authority over the other person.” Specifically, Sanderson argues that the

State failed to establish that K.T. and/or T.U. were “in custody of law” or that he had

“supervisory or disciplinary authority over” them. -18-

{¶ 43} Neither the “in custody of law” nor the “supervisory or disciplinary authority”

phrase in R.C. 2907.03(A)(6) has a legislative definition or a technical or particular

meaning. Therefore, these phrases must be read in context and construed according to

common usage. State v. Manocchio, 138 Ohio St.3d 292, 2014-Ohio-785, 6 N.E.3d 47,

¶ 17, citing R.C. 1.42.; see also State v. Arega, 2012-Ohio-5774, 983 N.E.2d 863, ¶ 16

(10th Dist.) (“Because ‘supervisory or disciplinary authority’ is not statutorily defined, the

words must be construed according to the rules of grammar and common usage”).

{¶ 44} “Custody” means “[t]he care and control of a thing or person for inspection,

preservation, or security” and “law” means “[t]he judicial and administrative process; legal

action and proceedings.” Black's Law Dictionary 412 and 900 (8th Ed.2004). Sanderson

asserts that R.C. 2907.03(A)(6) in general and this phrase in particular has traditionally

been found to refer to prisoners and patients in a hospital or other institution. This

interpretation is based upon language expressed in the 1973 Legislative Service

Commission Comment, which states that this subsection “proscribes sexual conduct with

a prisoner, or with a patient in a hospital or institution, by an offender who has supervisory

or disciplinary authority over the victim.”

{¶ 45} However the First District Court of Appeals has stated that this phrase is

“obviously elastic and does not necessarily require actual imprisonment or physical

detention,” although it arguably “does require some showing that the victim's liberty was

restrained by some power conferred by the state.” State v. Walker, 140 Ohio App.3d 445,

455, 748 N.E.2d 79 (1st Dist.2000). That is, the plain meaning of “in custody of law or a

patient in a hospital or other institution” is not restricted to prisoners and patients; it

includes “prisoners, patients, and residents” and “does not require proof of coercion, -19-

impairment, or other condition.” See generally Katz, Martin, Lipton, Giannelli, and

Crocker, Baldwin's Oh. Prac. Crim L., Section 99:10 (3d Ed.2014); State v. Roy, 2014-

Ohio-5186, 22 N.E.3d 1112, ¶ 43 (9th Dist.) (several districts have interpreted R.C.

2907.03(A)(6) to be “applicable to custodial-type settings”). See State v. Reyes-Rosales,

4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, ¶ 24 (child who had been adjudicated

delinquent was placed in a children’s home pursuant to court order, thereby restraining

his liberty; accordingly, the jury had sufficient evidence before it to determine that the child

was “in custody of law” when the defendant engaged in sexual conduct with him).

{¶ 46} In the instant case, Sanderson argues that K.T. and T.U. were not “in

custody of law” at the time that the sexual conduct actually occurred because he had left

and then returned to the room, where he was voluntarily granted entry by K.T. However,

this argument ignores the fact that Sanderson initially entered the women’s room without

permission to do so, searched the room for contraband, obtained their personal

information, ran the information through dispatch, handcuffed both women, and patted

them down. When he returned to the room after returning the master key, both K.T. and

T.U. testified that they were still afraid that Sanderson was going to arrest them, so they

responded affirmatively when he asked them if they “wanted to have fun off the record.”

Tr. 265. Both women testified that they did not feel free to leave. K.T. also testified that

she had been violently raped in the past. Therefore, K.T. testified that she did not want

to have to fight Sanderson off or get raped at gunpoint if she refused his advances. We

also note that during the entirety of the assault, Sanderson was wearing his police

uniform, had handcuffs, and was armed with his service weapon and Taser.

Accordingly, the trial court did not err when it held that the State had adduced sufficient -20-

evidence that K.T. and T.U. were in “custody of law” and under Sanderson’s “supervisory

or disciplinary authority” when they felt that they had to acquiesce to his sexual demands.

{¶ 47} Therefore, after viewing the evidence in a light most favorable to the State,

we conclude that any rational trier of fact could have found the essential elements of

sexual battery, in violation of R.C. 2907.03(A)(6), proven beyond a reasonable doubt.

We further conclude that this is not an exceptional case requiring a reversal as being

against the manifest weight of the evidence.

Kidnapping (Sexual Activity) Against K.W. and T.B.

{¶ 48} Sanderson was convicted of two counts of kidnapping (sexual motivation)

in violation of R.C. 2905.01(A)(4), which states in pertinent part:

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: To engage in sexual activity, as

defined in section 2907.01 of the Revised Code, with the victim against the

victim's will.

{¶ 49} In this section, Sanderson contends that the State failed to adduce sufficient

evidence that he removed or restrained either K.W. or T.B. for the purpose of sexual

activity. Sanderson acknowledges that he removed both women from the places they

were initially found by him and took them to the Phillipsburg Police Station. Sanderson

also acknowledges that he restrained both women at the station by handcuffing and

holding them there for a brief time. Sanderson defends his actions in this regard by

arguing that he was authorized under the law to detain and/or arrest both women because

they had broken the law. In K.W.’s case, Sanderson asserts that she was driving while -21-

intoxicated and she did not have a driver’s license. In T.B.’s case, Sanderson argues

that she had an outstanding warrant for her arrest. Thus, Sanderson argues that he had

valid legal basis to take both women into custody and bring them to the police station.

We also note that Sanderson denies engaging in any sexual activity with T.B.

{¶ 50} However, Sanderson’s arguments are undermined by the fact that he did

not ultimately arrest either K.W. or T.B. In fact, even though he was allegedly concerned

about her level of intoxication and her lack of a driver’s license, Sanderson permitted K.W.

to drive back to her residence in Greenville after he raped her twice, even following her

home in order to keep any other police officers from stopping her. With respect to T.B.,

Sanderson handcuffed her and transported her to the police station allegedly because

she had an outstanding warrant. Once at the station, Sanderson proceeded to fondle

her breast and digitally penetrate her vagina as he “patted her down.” Inexplicably, once

the assault ended, he immediately drove her back to her residence, warning her that he

would return if she did not resolve the warrant.

{¶ 51} Upon review, we conclude that sufficient evidence was adduced to establish

that Sanderson removed and restrained K.W. and T.B. to the police station under the

guise of upholding the law in order to sexually assault both women. Accordingly, after

viewing the evidence in a light most favorable to the State, we conclude that any rational

trier of fact could have found the essential elements of kidnapping (sexual motivation), in

violation of R.C. 2905.01(A)(4), proven beyond a reasonable doubt. We further conclude

that this is not an exceptional case requiring a reversal as being against the manifest

Interference with Civil Rights (K.W., T.B., K.T., & T.U.) -22-

{¶ 52} Sanderson was convicted of four counts of interfering with civil rights, in

violation of R.C. 2921.45(A), which states in pertinent part:

No public servant, under color of his office, employment, or authority, shall

knowingly deprive, or conspire or attempt to deprive any person of a

constitutional or statutory right.

{¶ 53} “The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). Investigatory detention, often referred to as a Terry stop,

allows an officer to briefly stop and temporarily detain individuals in order to investigate

possible criminal activity. State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876

N.E.2d 1304 (2d Dist.), citing Terry. An investigatory stop does not constitute an arrest

or place the suspect in custody. State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854,

936 N.E.2d 529, ¶ 16 (10th Dist.). It is well established that “[a]n individual is subject to

an investigatory detention when, in view of all the circumstances surrounding the incident,

by means of physical force or show of authority, a reasonable person would have believed

that he was not free to leave or [was] compelled to respond to questions.” State v. Love,

2d Dist. Montgomery No. 23902, 2011-Ohio-1287, ¶ 18, quoting In re D.W., 184 Ohio

App.3d 627, 2009-Ohio-5406, 921 N.E.2d 1114, ¶ 13-16 (2d Dist.).

{¶ 54} To justify a pat-down under Terry, “the police officer must be able to point

to specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.” Terry at 21. Once a lawful stop has been made,

a police officer may conduct a limited protective search for concealed weapons if the

officer reasonably believes that the suspect may be armed or a danger to the officer or to -23-

others. State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993); State v. Molette,

2d Dist. Montgomery No. 19694, 2003-Ohio-5965, ¶ 13. “The purpose of this limited

search is not to discover evidence of crime, but to allow the officer to pursue his

investigation without fear of violence * * *.” Evans at 408, quoting Adams v. Williams, 407

U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

{¶ 55} Initially, we note that Sanderson was convicted of interfering with the civil

rights of K.W., T.B., K.T., and T.U. by depriving them of their Fourth Amendment rights to

be free from unreasonable searches and seizures. Arguably, Sanderson could have

potentially justified conducting a brief pat-down search of K.W. and T.B. before he placed

them in his cruiser to take them to the police station if he reasonably believed that either

woman might have been armed or a danger to him or to others. Conversely, both K.T.

and T.U. were in a relative state of undress when Sanderson encountered them.

Therefore, it would be more difficult to articulate a reasonable and articulable suspicion

to support a pat-down of K.T. and T.U. Moreover, as we have previously stated,

Sanderson had no right to be in their hotel room in the first place as he was committing

aggravated burglary when he entered the room without the women’s consent.

{¶ 56} Nevertheless, the manner in which Sanderson conducted the pat-downs

was unlawful, and his actions in this regard were clearly unjustifiable and unlawful.

Specifically, after bringing a handcuffed K.W. into an empty police station, Sanderson

proceeded to pat-down K.W. by pulling up her dress, pulling down her shorts and

underwear, and kissing her buttock. Thereafter, Sanderson directed a still-handcuffed

K.W. to sit on the edge of a desk. Once K.W. sat down, Sanderson began performing

oral and vaginal sex on her. -24-

{¶ 57} With respect to T.B., Sanderson initially patted her down at her house by

directing T.B. to pull out her bra and proceeding to pat her down under her shirt. T.B.

testified that Sanderson also pulled on her belt loop and asked her if she was wearing

any underwear. At this point, Sanderson placed T.B. in handcuffs behind her back and

led her out to his police cruiser. Once they were at the police station, Sanderson

removed her handcuffs and began patting her down again. T.B. testified that she

believed it was a great deal more intrusive than was necessary. T.B. testified that

Sanderson pulled on her bra, began touching her breasts, and digitally penetrated her.

{¶ 58} Regarding the pat-downs of K.T. and T.U., Sanderson ordered the women

to lift up their dresses so that he could search them. K.T. testified that he made them

show their bras and bare skin. T.U. testified that Sanderson ran his finger along the

inside of the waistband of her see-through underwear.

{¶ 59} Clearly, the “pat-downs” conducted by Sanderson of the four complaining

witnesses were not for legitimate law enforcement purposes, but rather to take advantage

of his position as a police officer in order to sexually assault and victimize the women. In

doing so, Sanderson violated the women’s Fourth Amendment right to be free from

unreasonable searches and seizures. Accordingly, after viewing the evidence in a light

most favorable to the State, we conclude that any rational trier of fact could have found

the essential elements of interfering with civil rights, in violation of R.C. 2921.45(A),

proven beyond a reasonable doubt. We further conclude that this is not an exceptional

case requiring a reversal as being against the manifest weight of the evidence.

Manifest weight of the Evidence (Rapes and GSI’s of K.W. and T.B.)

{¶ 60} Furthermore, having reviewed the record, we find no merit in Sanderson's -25-

manifest weight challenge regarding the sex offenses committed against K.W. and T.B.

It is well settled that evaluating witness credibility is primarily for the trier of fact. State v.

Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also State v. Benton, 2d

Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not lose its way

and create a manifest miscarriage of justice if its resolution of conflicting testimony is

reasonable. Id. Here, the trial court reasonably credited the State's evidence, which

established that Sanderson was guilty of the rapes and GSIs for which he was convicted

in relation to K.W. and T.B.

{¶ 61} As previously stated, K.W. testified that Sanderson asked her if he could

pat her down. K.W. testified that Sanderson stood behind her and started to pat her

down. K.W. testified that Sanderson then pulled up her dress, pulled down her shorts

and underwear, and started kissing her buttock. Thereafter, Sanderson directed a still-

handcuffed K.W. to sit on the edge of a desk. Once K.W. sat down, Sanderson began

performing oral sex on her. K.W. testified that Sanderson then bent her over the desk

and inserted his penis into her vagina from behind. K.W. testified that Sanderson

removed his clothes and took off her dress. Sanderson then carried her into another

room in the station and continued having vaginal intercourse with her on the floor. After

the sexual assault ended, Sanderson took K.W. to her vehicle and then followed her as

she drove home.

{¶ 62} T.B. testified that during her “pat-down” Sanderson pulled on her bra and

began touching her breasts. T.B. testified that she tried to pull away, and Sanderson

stopped and sat down in a chair facing her. T.B. testified that at this point, she was crying

and praying out loud. Sanderson then stopped and left the room. When Sanderson -26-

returned, he handcuffed T.B. again. T.B. testified that she was very scared at this point

and told Sanderson “just take me to jail.” Tr. 573. Sanderson asked T.B., “What do you

suggest?” Id. T.B. testified that she asked, “Suggest for what?” Sanderson replied, “To

make this go away.” Id. Sanderson also told T.B. “you may not realize how hot you are.”

Tr. 576. Sanderson then ordered T.B. to stand up and turn around. Sanderson stood

behind her and began running his hands down her and around to the front of her body.

T.B. testified that he grabbed her breasts, unbuttoned the top of her shorts, and stuck his

hand down her pants. T.B. testified that Sanderson then digitally penetrated her vagina,

and she pulled away, stating “she was not that kind of girl” and to “just take her to jail.”

Tr. 578.

{¶ 63} In light of the foregoing, the trial court did not lose its way and create a

manifest miscarriage of justice in reaching guilty verdicts for the rapes and GSI’s

Sanderson committed against K.W. and T.B.

{¶ 64} Sanderson’s first assignment of error is overruled.

{¶ 65} Sanderson’s second and final assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT SENTENCED SANDERSON

SEPARATELY FOR CERTAIN OFFENSES THAT ARE ALLIED

OFFENSES OF SIMILAR IMPORT.

{¶ 66} In his final assignment, Sanderson argues that the trial court erred when it

failed to merge his convictions for the rapes and kidnappings of K.W. and T.B.

Sanderson also contends that the trial court erred when it failed to merge his convictions

for kidnapping and interfering with civil rights in relation to K.W. and T.B. We disagree.

{¶ 67} R.C. 2941.25, Ohio's allied offense statute, provides that: -27-

(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.

{¶ 68} The Ohio Supreme Court clarified the applicable standard when

determining whether offenses merge as allied offenses of similar import in State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892:

Rather than compare the elements of two offenses to determine

whether they are allied offenses of similar import, the analysis must focus

on the defendant's conduct to determine whether one or more convictions

may result, because an offense may be committed in a variety of ways and

the offenses committed may have different import. No bright-line rule can

govern every situation.

As a practical matter, 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 -28-

separate animus or motivation? An affirmative answer to any of the above

will permit separate convictions. The conduct, the animus, and the import

must all be considered.

Id. at ¶ 30-31.

{¶ 69} In State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-143, this

Court stated the following:

[T]he Ohio Supreme Court addressed the allied-offense issue again

in State v. Earley, [145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266].

There the majority characterized the analysis in its earlier [State v.]

Johnson[, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061] lead

opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead

embraced Ruff, which, as noted above, considers a defendant's conduct,

his animus, and the import or significance of his offenses. Applying Ruff,

the Earley court concluded that misdemeanor OVI and felony aggravated

vehicular assault “are offenses of dissimilar import and significance that are

to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis

here, we note that a defendant bears the burden of establishing entitlement

to merger, and we review a trial court's ruling on the issue de novo. State v.

LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.

We reach the same conclusion under the Ruff standard, which the

Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters

or undermines the foregoing analysis about [the defendant's] commission -29-

of murder and aggravated robbery involving the same conduct committed

with the same animus. For the reasons set forth above, we conclude that

the two offenses were not committed separately and were not committed

with a separate animus or motivation. These findings remain pertinent

under Ruff, which, as noted above, provides that offenses do not merge if

“(1) the offenses are dissimilar in import or significance—in other words,

each offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate

animus or motivation.” Ruff at ¶ 25 [and] ¶ 30-31.

Id. at ¶ 54, quoting State v. McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 51, 60 (2d Dist.).

{¶ 70} An appellate court applies a de novo standard of review in reviewing 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. “The defendant 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.

{¶ 71} Sanderson argues that his rape and kidnapping convictions were subject to

merger as allied offenses because his purpose for kidnapping K.W. and T.B. was

motivated by his intent to rape them. Sanderson contends that the rapes and

kidnappings constituted a continuous course of conduct and were therefore subject to

merger.

{¶ 72} With respect to the offenses of rape and kidnapping, the Ohio Supreme

Court has acknowledged that “implicit within every forcible rape * * * is a kidnapping” -30-

because the victim's liberty is restrained during the act of forcible rape. State v. Logan,

60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). In Logan, the court provided the

following guidelines for determining whether kidnapping and another offense are allied

offenses that should merge prior to sentencing, stating:

(a) Where the restraint or movement of the victim is merely incidental

to a separate underlying crime, there exists no separate animus sufficient

to sustain separate convictions; however, where the restraint is prolonged,

the confinement is secretive, or the movement is substantial so as to

demonstrate a significance independent of the other offense, there exists a

separate animus as to each offense sufficient to support separate

convictions;

(b) Where the asportation or restraint of the victim subjects the victim

to a substantial increase in risk of harm separate and apart from that

involved in the underlying crime, there exists a separate animus as to each

offense sufficient to support separate convictions.

Logan at syllabus.

{¶ 73} Applying these guidelines, the Ohio Supreme Court held in Logan that the

offender's conduct in forcing the victim into an alley before raping her at knife point was

committed without a separate animus. The court found that the movement was slight,

the detention brief, and the victim was released immediately after the commission of the

underlying crime, compelling the court's conclusion that the kidnapping was incidental to

the rape. Id. at 135.

{¶ 74} In State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, we -31-

addressed a case in which the defendant claimed that kidnapping was incidental to the

rapes he committed. In Portman, the defendant led the victim through the store to a

lounge-type area in the basement, which could not be seen from the parking lot and was

more isolated than other parts of the store. Id. at ¶ 42. The defendant put a gun to her

head when she expressed her desire to leave, asking her about the friend waiting in her

car and preventing her from leaving. Id. After the rapes, the defendant again attempted

to prevent her from leaving the basement, through physical restraint and brandishing the

gun. Id. We found that, although the additional aspects of time, distance, and danger

that related to the kidnapping in Portman, as separate from the rape, were not as

significant as those found in some of the other cases we discussed, we specifically noted

that the defendant threatened the victim with a gun and prevented her from leaving, before

and after the rapes occurred. Id. Ultimately, we found that the trial court did not err in

failing to merge the kidnapping count with the rape counts.

{¶ 75} In State v. Bozeman, 2d Dist. Clark No. 2014-CA-38, 2015-Ohio-616, we

found that the kidnapping and subsequent rape of the victim were committed with a

separate animus, and therefore not allied offenses of similar import. Id. at ¶ 18.

Specifically, the victim was kidnapped at gunpoint, robbed, and then transported in her

own stolen vehicle to various locations. Id. The victim was then raped multiple times in

another undisclosed location. Id. After the rapes occurred, the defendant robbed the

victim of her wedding rings and threatened her, again at gunpoint, not to report the

incident to police or he would harm her and her family. Id. Accordingly, we held that due

to the prolonged nature of the detention of the victim prior to the rape, the additional

aspect of travel to several different locations, and the danger related to the actual -32-

kidnapping (i.e. threats made at gunpoint), the offenses were committed with a separate

animus, and the trial court did not err when it failed to merge the kidnapping with the rape.

Id.

{¶ 76} Upon review, we conclude that the facts of the instant case are

distinguishable from the holding in Logan. The evidence adduced at trial established

that the kidnappings and subsequent rapes of K.W. and T.B. were committed with a

separate animus, and therefore the offenses were not allied offenses of similar import.

While Sanderson’s decision to kidnap both women was sexually motivated, the evidence

adduced at trial established substantial movement and restraint of K.W. and T.B., as well

as a substantial increase in the risk of harm caused by said restraint. With respect to

K.W., Sanderson restrained her in handcuffs at the scene of the traffic stop, transported

her to the Phillipsburg Police Station, then continued to restrain her before raping her in

one room and moving her to another room and raping her again. After the assaults,

Sanderson restrained K.W. in his cruiser when he drove her back to her vehicle.

{¶ 77} Sanderson followed a similar pattern with T.B. insofar as he handcuffed her

and transported her in his cruiser to the police station. Once there, Sanderson kept T.B.

handcuffed before he removed the restraints and digitally raped her. After the assault,

Sanderson restrained T.B. in his cruiser when he drove her back to her house.

{¶ 78} Accordingly, due to the prolonged nature of the detention of the victims

before and after the rapes, and Sanderson's act of transporting the women to and from a

different and isolated location (the police station), we find that the offenses were

committed with a separate animus, and the trial court did not err when it failed to merge

the kidnappings with the rapes. -33-

{¶ 79} Finally, Sanderson contends that his convictions for kidnapping and

interfering with civil rights relating to K.W. and T.B. were subject to merger because the

offenses were committed as a continuous course of conduct. However, as previously

stated, Sanderson handcuffed both women, transported them to the police station, then

continued the restraint before raping them. After the rapes occurred, he restrained the

women in his cruiser when he drove them back to where he initially found them.

{¶ 80} Separate and apart from the kidnappings, Sanderson interfered with the

women’s civil rights when he performed unlawful pat-downs which violated their Fourth

Amendment right to be free from unreasonable searches and seizures. Thus, we find

that the kidnappings of K.W. and T.B. were committed with a separate animus and a

separate identifiable harm from his convictions for interfering with civil rights. Thus, the

trial court did not err when it failed to merge the offenses.

{¶ 81} Sanderson’s second assignment of error is overruled.

{¶ 82} Both of Sanderson’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

WELBAUM, P.J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Ben M. Swift Hon. Steven K. Dankof