State v. Nolan, 2007 Ohio 1299 (Ohio App. 3/22/2007)
| Decision Date | 22 March 2007 |
| Docket Number | No. 88111.,88111. |
| Citation | 2007 Ohio 1299 |
| Parties | State of Ohio, Plaintiff-Appellee. v. Steve Nolan, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Paul Mancino, Jr., Esq., 75 Public Square, Suite 1016, Cleveland, Ohio 44113-2098, Attorney for Appellant.
William D. Mason, Esq., Cuyahoga County Prosecutor, By: Christopher Wagner, Esq., Asst. County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, Attorney for Appellee.
Before: Dyke, J., Calabrese, P.J., McMonagle, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant Steve Nolan appeals from his conviction for attempted kidnapping. For the reasons set forth below, we affirm the finding of guilt, vacate the sentence and remand for resentencing.
{¶ 2} On March 24, 2005, defendant was indicted for one count of attempted kidnapping. He pled not guilty and moved for a voir dire hearing of the identifying witnesses. The trial court held a hearing on this motion on July 14, 2005. Cleveland Police Lt. Gail Maxwell and Det. Michael Meyer testified that defendant was placed in a line-up with five other men of similar height, build, complexion and appearance. The complaining witness, sixteen year-old Stephanie Martin, then testified after the trial court adjourned the proceedings and reconvened in chambers and outside of the presence of defendant. Martin testified that she identified defendant from the line-up and that she thought he could see her so she fled the room crying. She also identified photographs of a vehicle owned by defendant. The trial court then granted defendant 30 days to review the transcript and determine whether he would file a motion to suppress the identification.
{¶ 3} The matter proceeded to a jury trial on March 13, 2006. The state's evidence demonstrated that Martin, a student at Glenville High School, was waiting for a bus at the bus stop at Arbor Road and St. Clair Avenue at approximately 7:30 a.m., on March 11, 2005. A black Jeep Cherokee with tinted windows and white numbers and letters pulled into the parking lot behind the bus stop.
{¶ 4} The driver asked Martin if he could talk to her and Martin said no. The man repeated the request and said that he could put money into her pocket and told her to get into the jeep. Martin again said no and the driver got out of the car and walked toward Martin. Martin ran and the man chased her and told her to get into the car. Martin ran to the left and the man ran in the same direction after her. Martin continued running and the man then returned to his car and left the scene. According to Martin, he was wearing a brown jacket, blue cap, blue jeans and blue Timberland boots.
{¶ 5} Martin fled to her home and her mother called the police. Martin conveyed her description of the vehicle and the man to the police. The case received media attention and two days later, Det. Moore received an anonymous tip that the vehicle was on Columbia Road. Officer Jerry Tucker responded to the area and a male flagged him down and indicated that a suspicious car with white letters and numbers was in a nearby driveway. Tucker went to the house and spoke with defendant then arrested him. His car was towed and blankets and alcohol were removed from the passenger compartment.
{¶ 6} Martin was shown pictures of defendant's car and identified them as the car driven by the man who chased her. Lt. Gail Maxwell selected five other men of similar height, weight and appearance to participate in a line up with defendant. Martin identified defendant and made a brief statement that indicated he was the man who had chased her.
{¶ 7} Defendant elected to present evidence and offered the testimony of Lorenzo Willis. Willis stated that he was with defendant at a party for contractors which began on the night of March 10, 2005 and ended the next morning at 8:00 or 9:00 a.m. According to Willis, defendant was one of the last people to leave and he observed defendant cleaning snow off of his car right before he left.
{¶ 8} Defendant was subsequently convicted of the offense and sentenced to four years of incarceration. He now appeals and assigns seven errors for our review.
{¶ 9} Defendant's first assignment of error states:
{¶ 10} "Defendant was denied due process of law when the court overruled his motions for judgment of acquittal."
{¶ 11} Within this assignment of error, defendant asserts that there was insufficient evidence to establish the offense and, in particular, insufficient evidence of force.
{¶ 12} "Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, in which the Ohio Supreme Court held:
{¶ 13} (Citations omitted.)
{¶ 14} In this matter, defendant was charged with attempted kidnapping. The attempt statute, R.C. 2923.02, provides as follows:
{¶ 15} "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of the offense, shall engage in the conduct that, if successful, would constitute or result in the offense."
{¶ 16} The offense of kidnapping is defined in R.C. 2905.01 as follows:
{¶ 17} "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 facilitate the commission of any felony or flight thereafter * * *."
{¶ 18} Force is defined in R.C. 2901.01(A)(1) as:
{¶ 19} "Any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing."
{¶ 20} "Force may properly be defined as 'effort' rather than 'violence' in a charge to the jury." State v. Lane (1976), 50 Ohio App.2d 41, 45, 361 N.E.2d 535.
{¶ 21} In State v. Muniz, 162 Ohio App.3d 198, 2005-Ohio-3580, 832 N.E.2d 1279, the court found sufficient evidence of force where:
{¶ 22}
{¶ 23} In this matter, the evidence demonstrated that defendant asked if he could talk to Martin and Martin said no. The man repeated the request and said that he could put money into her pocket. He then told her to get into the jeep. Martin again said no and the driver got out of the car and walked toward Martin. Martin ran and the man ran after her and told her to get into the car. In short, he attempted to lure her into his car then chased her when she refused to comply. Construing this evidence most favorably to the state, to determine whether the jury in this instance could have found the essential elements of attempted kidnapping proven beyond a reasonable doubt, we conclude that the evidence manifests defendant's physical exertion at catching Martin and removing her from the place where she was found and manifests restraint of her freedom of movement and was sufficient to establish the offense of attempted kidnapping. In accordance with all of the foregoing, this assignment of error is without merit.
{¶ 24} Defendant's second assignment of error states:
{¶ 25} "Defendant was denied due process of law when the court did not suppress evidence resulting from defendant's warrantless arrest and subsequent identification procedure."
{¶ 26} R.C. 2935.04 authorizes any person may make a warrantless arrest when a felony has been committed or there is reasonable ground to believe a felony has been committed and when the person making the arrest has reasonable cause to believe the person arrested is guilty of the offense.
{¶ 27} In Adams v. Williams (1972), 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 618, the court explained the concept of probable cause:
{¶ 28}
{¶ 29} In this matter, the officers discovered a vehicle which matched the vehicle driven by the assailant, and defendant admitted that it was his. The record reveals a particularized and objective basis for suspecting defendant of criminal activity and this evidence was therefore sufficient to establish probable cause under the statute. Cf. State v. Vance (May 11, 1987) Clark App. No. 2246; State v. Huston (Jan. 2, 1986), Lake...
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