State v. Ozevin , 2013 Ohio 1386 ( 2013 )

[Cite as State v. Ozevin, 2013-Ohio-1386.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-06-044
: OPINION
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:
ERDEL OZEVIN, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2011CR01073
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
William J. Rapp, Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for
defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Erdel Ozevin, was convicted of aggravated burglary and
kidnapping in the Clermont County Court of Common Pleas. Appellant argues on appeal that
these offenses should have been merged for sentencing. We agree. Under the facts and
circumstances of this case, aggravated burglary and kidnapping are allied offenses of similar
import that should have been merged under R.C. 2941.25. Consequently, we remand this
Clermont CA2012-06-044
case for a new sentencing hearing after the state selects which allied offense to pursue.
{¶ 2} On December 21, 2011, appellant was indicted by a grand jury on five counts,
including aggravated burglary, attempted murder, kidnapping, felonious assault, and
possessing criminal tools. The counts regarding attempted murder and felonious assault
were dismissed and appellant pled guilty to the remaining charges. The counts for
aggravated burglary and possessing criminal tools merged. Consequently, appellant was
only convicted of aggravated burglary in violation of R.C. 2911.11(A)(1) and kidnapping in
violation of R.C. 2905.01(B)(2).
{¶ 3} Prior to sentencing, the trial court gave the state the opportunity to provide
additional evidence though testimony of the victim. The state declined to do so. At the plea
hearing, specific facts were read into the record. A summary of these specific facts follow,
with any facts disputed by appellant omitted. Appellant stealthily entered the victim's home
while she was away. As the victim entered the dark laundry room from her garage, appellant
attacked the victim by placing a plastic bag over her head. A struggle ensued whereby
appellant struck the victim in the face and body, and attempted to bind her legs with duct
tape. In retaliation, the victim clawed at appellant's face, tried to fight him off, and bit him in
the hand. Meeting such resistance, appellant fled the scene. Appellant left behind multiple
zip ties, a large black canvas bag, a large black shroud, and other miscellaneous items.
{¶ 4} Appellant was sentenced to seven years in prison on the aggravated burglary
charge. Additionally, appellant was sentenced to five years in prison for kidnapping. Both
were to run consecutively for an aggregate 12-year prison term.
{¶ 5} Appellant now appeals and asserts one assignment of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED BY IMPOSING MULTIPLE, CONSECUTIVE
SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT.
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{¶ 8} Appellant argues that he should not have been convicted of both aggravated
burglary and kidnapping because they were committed with the same act and the same
animus. Appellant asserts that with the actions of entering the victim's home, attempting to
restrain her, scaring her, and fleeing, he committed both aggravated burglary and kidnapping.
We agree.
{¶ 9} R.C. 2941.25, Ohio's multiple-count statute, prohibits the imposition of multiple
punishments for the same criminal conduct. State v. Brown, 12th Dist. No. CA2009-05-142,
2010-Ohio-324, ¶ 7. The statute provides:
(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.
{¶ 10} In State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, the Ohio Supreme
Court established a two-part test to determine whether offenses are allied offenses of similar
import under R.C. 2941.25. State v. Craycraft, 12th Dist. Nos. CA2009-02-013 and CA2009-
02-014, 2011-Ohio-413, ¶ 11. Courts must first determine whether it is possible to commit
one offense and commit the other with the same conduct. Johnson at ¶ 48; State v.
McCullough, 12th Dist. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992, ¶ 14. In
making this determination, it is not necessary that the commission of one offense would
always result in the commission of the other, but instead, the question is simply whether it is
possible for both offenses to be committed by the same conduct. Johnson at ¶ 48; Craycraft
at ¶ 11.
{¶ 11} If it is found that the offenses can be committed by the same conduct, the court
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must then determine "whether the offenses were committed by the same conduct, i.e., 'a
single act, committed with a single state of mind.'" Johnson at ¶ 49, quoting State v. Brown,
119 Ohio St. 3d 447, 2008-Ohio-4569, ¶ 50. If both questions are answered in the
affirmative, the offenses are allied offenses of similar import and must be merged. Johnson
at ¶ 50; State v. Roy, 12th Dist. No. CA2009-11-290, 2011-Ohio-1992, ¶ 11. However, if the
commission of one offense will never result in the commission of the other, "or if the offenses
are committed separately, or if the defendant has separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge." Johnson at ¶ 51; Craycraft at ¶
11-12; Roy at ¶ 11.
{¶ 12} First, the state concedes, and we agree, that is possible to commit the offenses
of aggravated burglary and kidnapping with the same conduct. In this case, aggravated
burglary is trespassing by force, stealth, or deception in an occupied structure with the
purpose to commit within the structure a criminal offense and inflicting, attempting to inflict, or
threatening to inflict physical harm on another. See R.C. 2911.11(A)(1). Kidnapping is
knowingly restraining another person's liberty by force, threat, or deception under
circumstances that create a substantial risk of serious physical harm to the victim. See R.C.
2905.01(B)(2). Harm or attempting harm to a victim to complete an aggravated burglary can
be caused by same conduct used to forcibly restrain another person. Accordingly, it is
certainly possible to commit both aggravated burglary and kidnapping with the same conduct.
{¶ 13} Now we must determine whether appellant committed the offenses with the
same conduct, i.e., a single act and a single state of mind. In State v. Logan, 60 Ohio St. 2d
126 (1979), paragraph one of the syllabus, in establishing whether kidnapping and another
offense of the same or similar kind are committed with a separate animus, the Ohio Supreme
Court adopted the following guidelines:
Where the restraint or movement of the victim is merely
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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;
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.
These guidelines appear to remain valid in the wake of Johnson. State v. McCullough, 2011-
Ohio-992 at ¶ 20. Additionally, the act of aggravated burglary in violation of R.C.
2911.11(A)(1) is not complete until the offender inflicts, attempts, or threatens physical harm
to another. State v. Seymore, 12th Dist. Nos. CA2011-07-131 and CA2011-07-143, 2012-
Ohio-3125, ¶ 24.
{¶ 14} In this case, the acts of placing a plastic bag over the victim's head, striking her,
and attempting to bind her legs with duct tape completed the aggravated burglary and were
also elements of the kidnapping. Any actual restraint of the victim must have occurred over a
relatively short period of time because appellant's attempts to bind the victim's legs failed
when she clawed at his face, tried to fight him off, and bit him in the hand, which caused him
to flee. Accordingly, the victim was not subject to an additional substantial risk of harm due
to the crime of kidnapping. The kidnapping posed no significance independent of the
aggravated burglary. Consequently, in this particular instance, we find that the aggravated
burglary and kidnapping were committed with the same animus.
{¶ 15} Under the facts and circumstances of this case, aggravated burglary and
kidnapping are allied offenses of similar import as they can be committed with the same
conduct and they were committed with the same animus. Accordingly, they must be merged
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for sentencing.1 Appellant's assignment of error is sustained.
{¶ 16} Insofar as the trial court failed to merge the offenses of aggravated burglary and
kidnapping at sentencing, the judgment of the trial court is reversed and this matter
remanded for further proceedings according to law and consistent with this opinion. Upon
remand, the state can elect which allied offense to pursue, which the trial court must accept
and merge the crimes for sentencing. State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, ¶
20, 24; State v. Weathers, 12th Dist. No. CA2011-01-013, 2011-Ohio-6793, ¶ 25.
{¶ 17} Reversed only to the extent the sentence is vacated, and the matter remanded
for resentencing.
PIPER and M. POWELL, JJ., concur.
1. Also under his first assignment of error appellant argues that the trial court abused its discretion by ordering
him to serve an aggregate 12-year prison term. However, because we find the offenses of aggravated burglary
and kidnapping allied offenses of similar import, appellant will only be sentenced as to one offense. Accordingly,
we need not address this argument.
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