State v. Logan

• Decision Date: 19 December 1979
• Docket Number: No. 79-229,79-229
• Citation: 14 O.O.3d 373,397 N.E.2d 1345,60 Ohio St.2d 126
• Parties: , 14 O.O.3d 373 The STATE of Ohio, Appellee, v. LOGAN, Appellant.
• Court: Ohio Supreme Court

Page 126

60 Ohio St.2d 126

397 N.E.2d 1345, 14 O.O.3d 373

The STATE of Ohio, Appellee, v. LOGAN, Appellant.

No. 79-229.

Supreme Court of Ohio.

Dec. 19, 1979.

Syllabus by the Court

In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines:

(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.

Thomas Alvin Logan was indicted by the Summit County Grand Jury for rape (R.C. 2907.02(A)(1)), kidnapping (R.C. 2905.01(A)(4)), carrying a concealed weapon (R.C. 2923.12), and two counts of corrupting another with drugs (R.C. 2925.02(A)(4)). He entered a plea of not guilty to each count.

Logan was brought to trial before a jury on May 30, 1978. Evidence adduced at trial tended to show that on April 18, 1978, the complainant, Teresa R., left her residence in Akron at approximately 11:00 a. m. to purchase cigarettes. As she was walking down the street she was accosted by defendant, a casual acquaintance, at the entrance to an alley.

Defendant offered Teresa some pills. When she refused to accept them, defendant produced a knife, held it to her throat, and forced her into the alley. Under such duress, she accompanied him down the alley, around a corner, and down a flight of stairs, where he raped her at knifepoint. Immediately following the rape, defendant released her.

Defendant testified in his own behalf. He stated that while he knew Teresa he had never threatened her with a knife, nor engaged in sexual intercourse with her.

After the court dismissed one of the counts of corrupting another with drugs, the jury returned verdicts of guilty on all the remaining counts. The trial court imposed consecutive sentences of from seven to twenty-five years imprisonment for rape, five to fifteen years for kidnapping, and three to ten years for carrying a concealed weapon. Defendant also received a concurrent sentence of three years imprisonment for corrupting another with drugs.

On appeal, the Court of Appeals affirmed the convictions. The cause is now before this court pursuant to allowance of a motion for leave to appeal only on the issue of whether the multiple-count provision of R.C. 2941.25 was violated.

Stephan M. Gabalac, Pros. Atty., and Carl M. Layman, III, Asst. Pros. Atty., for appellee.

J. Tullis Rogers, Columbus, and Elizabeth Manton, Asst. State Public Defender, for appellant.

HOLMES, Justice.

In a challenge grounded upon Ohio's multiple-count statute, R.C. 2941.25, appellant urges this court to set aside his conviction for kidnapping. He asserts that rape and kidnapping are allied offenses of similar import, that he possessed but a single animus in carrying out his course of criminal conduct as to these offenses, and that the courts below erred in permitting his kidnapping conviction to stand.

Prior to the discussion of the issues presented here, we set forth the multiple-count statute, R.C. 2941.25:

"(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."

At the outset we note that this general subject of the allied offenses of rape and kidnapping was recently addressed by the court in State v. Donald (1979), 57 Ohio St.2d 73, 386 N.E.2d 1341. In Donald, this court held that, "(k) idnapping, as defined by R.C. 2905.01(A)(4) is an 'offense of similar import' to rape, as defined by R.C. 2907.02(A)(1), for purposes of application of R.C. 2941.25(A)."

This court also has recently discussed the impact of R.C. 2941.25(B) in State v. Frazier (1979), 58 Ohio St.2d 253, 389 N.E.2d 1118. The instant cause presents the court with a further opportunity to examine R.C. 2941.25 both as to subsection (A) and subsection (B). ¹

The conclusion in Donald was reached following a comparison of the respective elements of the offenses of kidnapping and rape, and the observation, 57 Ohio St.2d at page 75, 386 N.E.2d at page 1342, that both crimes "by their very nature, are committed for the same purpose." ²

In essence, Donald established that in order for two crimes to constitute allied offenses of similar import, there must be a recognized similarity between the elements of the crimes committed. The offenses and their elements must correspond to such a degree that commission of the one offense will result in the commission of the other.

In addition to the requirement of similar import of the crimes committed, the defendant, in order to obtain the protection of R.C. 2941.25(A), must show that the prosecution has relied upon the same conduct to support both offenses charged. The significance of the holding of Donald was that the defendant would be afforded the protection of subsection (A) where the facts ³ were such that the same conduct by the defendant could be construed to constitute two allied offenses of similar import.

Even though there might be a shield initially provided a defendant under R.C. 2941.25(A) where charged with multiple counts, he still must overcome the hurdle of R.C. 2941.25(B). This section, in essence, provides that notwithstanding the fact that a defendant is charged with two or more offenses of the same or similar kind he may be convicted of all of them if he committed them separately, or if he possessed a separate "animus" as to each. In so providing, R.C. 2941.25(B) "carves an exception to division (A) of the same statute * * *." State v. Frazier, supra, 58 Ohio St.2d at page 255, 389 N.E.2d at page 1120.

We believe it to be necessary to establish reasonable criteria for the determination of what might constitute separate animus, within the meaning of R.C. 2941.25(B), when a defendant has been charged with multiple offenses including kidnapping. To facilitate the establishment of such criteria, we briefly review the background of the crime of kidnapping.

At common law, kidnapping was defined as the "forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another." 4 Blackstone's Commentaries 219.

In 1866, the General Assembly enacted this state's first general kidnapping statute, which apparently required the victim's asportation from the state or the imprisonment of the victim with the intent of removing him from the state (63 Ohio Laws 16).

The next significant development in the law of kidnapping occurred in 1902, when the element of asportation was eliminated. The statute, as amended, prescribed imprisonment for one to twenty years for one who "kidnaps, or forcibly or fraudulently carries off, detains or decoys any person * * *" (95 Ohio Laws 100). In addition, a second statute was enacted (95 Ohio Laws 648), which imposed harsher penalties for kidnapping for purposes of extortion.

Our current statute, R.C. 2905.01, combines elements of the former statutes, but expands upon the previous definition of kidnapping. It provides, as follows:

"(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes:

"(1) To hold for ransom, or as a shield or hostage;

"(2) To facilitate the commission of any felony or flight thereafter;

"(3) To terrorize, or to inflict serious physical harm on the victim or another;

"(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will;

"(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority.

"(B) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall knowingly do any of the following, under circumstances which create a substantial risk of serious physical harm to the victim:

"(1) Remove another from the place where he is found;

"(2) Restrain another of his liberty;

"(3) Hold another in a condition of involuntary servitude.

"(C) Whoever violates this section is guilty of kidnapping, a felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is a felony of the second degree."

It is clear from the plain language of the statute that no movement is required to constitute the offense of kidnapping; restraint of the victim by force, threat, or deception is sufficient. Thus, implicit within every forcible rape (R.C. 2907.02(A)(1) is a kidnapping. The same may be said of robbery (R.C. 2911.02), and, under certain circumstances, of felonious assault (R.C. 2903.11).

Recognizing that in many cases a single criminal act could constitute two or more similar crimes, the General Assembly attempted to remedy this problem by...