State v. Gibson , 2014 Ohio 3421 ( 2014 )

[Cite as State v. Gibson, 2014-Ohio-3421.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100727
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH GIBSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED
IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-563845-A
BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Marc D. Bullard
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Kenneth Gibson appeals his convictions for gross sexual
imposition and kidnapping and assigns the following four assigned errors:
I. Defendant was denied his right to a speedy trial in violation of R.C.
2945.71 and the State of Ohio and United States Constitutions.
II. Defendant was denied effective assistance of counsel in violation
of the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
III. Kenneth Gibson’s convictions for kidnapping and gross sexual
imposition are against the manifest weight of the evidence.
IV. The trial court erred in concluding that Kenneth Gibsons’s
kidnapping and gross sexual imposition convictions were not allied
offense of similar import.
{¶2} Having reviewed the record and pertinent law, we conclude the trial
court erred by failing to conclude that the gross sexual imposition charges and the
kidnapping with sexual motivation charge were allied offenses of similar import;
therefore, we reverse and remand for further proceedings consistent with this
opinion. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Gibson for one count of
kidnapping with a sexual motivation specification and two counts of gross sexual
imposition. The charges were based on the allegation that Gibson forcibly engaged
in sexual contact with his 29-year-old niece. Gibson waived his right to a jury
trial, and the matter was conducted before the bench.
{¶4} Gibson’s niece lived next door to Gibson. She and Gibson often spent
time drinking together at Gibson’s house along with Gibson’s girlfriend. On June
16, 2012, the niece went over to Gibson’s house for drinks. According to the
niece, it was just her and Gibson there because he had just broken up with his
girlfriend. They drank three to four bottles of wine over an eight or nine-hour
period of time. She could not recall how many glasses she drank, but stated she
was not impaired.
{¶5} The niece stated that at one point, Gibson walked over to her, bent
down, and kissed her foot. She asked Gibson what he was doing, but Gibson did
not respond. She “shook it off” and continued to drink.
{¶6} Between midnight and 1:00 a.m., the niece decided to leave because
Gibson had kissed her inner thigh. Gibson promised to give her everything he
owned if she would “have sex with him.” The niece walked to the front door, but
she could not open the door because it was locked, although the key was in the lock.
Gibson pulled her away from the door and stood in front of her, blocking the
door. He then “dropped his pants and his underwear.” He grabbed his niece’s
hand and “made me stroke his penis twice.” Gibson also pulled her close and
placed his hand underneath her dress and underwear and “stuck his finger around
my anus.” Gibson would not let her leave until she promised not to tell anyone
what had occurred.
{¶7} When the niece returned home, she told her cousin who lived with her
what happened and called her aunt, uncle, and mother. Her aunt then called 911.
Cleveland Police responded to the call and arrived at the niece’s house around 2:00
a.m. Officer Dickens took a statement from the niece. He believed she was
intoxicated because she smelled of alcohol and her eyes were red. However, he
said her speech was not slurred and that “she knew what was going on.” The niece
told him that Gibson made sexual advances towards her and that he kissed her feet
and legs and went up her dress to touch her anal area.
{¶8} Officer Dickens went next door to speak with Gibson. Officer
Dickens stated that Gibson “looked like he just woke up,” and was “heavily
intoxicated.” Gibson was only wearing underwear. Gibson allowed the officer
into his apartment. The officer observed five bottles of wine, a key in the lock of
the inside door, and jeans lying on the floor.
{¶9} The niece was transported to Hillcrest Hospital for a sexual assault
examination by a Sexual Assault Nurse Examiner (“SANE”) trained in the
collection of sexual assault evidence. The SANE nurse collected dry swabs from
the victim’s foot, inner thigh, and anal area. The nurse also took a dry swab of the
victim’s right breast because the victim had told her that Gibson placed his mouth
on her breast.
{¶10} Analysis of the swabs from the breast and perianal showed it contained
only the niece’s DNA. The swab from the foot showed DNA consistent with
Gibson’s, and Gibson could not be excluded as a possible contributor to the DNA
on the swabs from the left hand and inner thigh.
{¶11} The trial court found Gibson guilty of all three counts. At the
sentencing hearing, the trial court concluded that the charges were not allied
offenses and did not merge the sentences. The trial court sentenced Gibson to
three years in prison for the kidnapping with sexual motivation count, and one year
each for the gross sexual imposition counts. All of the counts were ordered to be
served concurrently.
Speedy Trial Violation
{¶12} In his first assigned error, Gibson argues that his statutory and
constitutional rights to a speedy trial were violated. Gibson was in jail for 479
days until his trial commenced.
{¶13} Gibson filed a pro se motion to dismiss based on the violation of his
right to a speedy trial. However, he did this at a time that he was represented by
counsel. The trial court did not rule on the motion, and no mention of it was made
prior to trial. This did not constitute error by the trial court because a defendant
cannot act as co-counsel on a case in which he has counsel. It is well established
that although a defendant has the right to counsel or the right to act pro se, a
defendant does not have any right to “hybrid representation.” State v. Martin, 103
Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the syllabus;
State v. Thompson, 33 Ohio St. 3d 1, 6-7, 514 N.E.2d 407 (1987). The right to
counsel and the right to act pro se “are independent of each other and may not be
asserted simultaneously.” Martin, paragraph one of the syllabus.
{¶14} As a result, when counsel represents a criminal defendant, a trial court
may not entertain a defendant’s pro se motion. State v. Washington, 8th Dist.
Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531, ¶ 11 (“Because [defendant]
chose to proceed with legal representation, the court could not consider
[defendant]’s motion to withdraw his plea, which his appointed counsel did not
agree with.”); State v. Pizzarro, 8th Dist. Cuyahoga No. 94849, 2011-Ohio-611, ¶
9 (“Had the trial court entertained defendant’s pro se motion while defendant was
simultaneously being represented by appointed counsel, this would have effectively
constituted hybrid representation in violation of the established law.”).
{¶15} Moreover, even if the motion was considered, it would be without
merit. The Sixth Amendment of the United States Constitution and Section 10,
Article I of the Ohio Constitution guarantee an accused the right to a speedy and
public trial. State v. Ginley, 8th Dist. Cuyahoga No. 90724, 2009-Ohio-30. The
standard of review that appellate courts apply to speedy trial issues is to count the
days as set forth in R.C. 2945.71. State v. Stevens, 8th Dist. Cuyahoga No. 87693,
2006-Ohio-5914. The trial must be held within 270 days of arrest in order to
effectuate a speedy trial. R.C. 2945.71(C)(2). However, pursuant to R.C.
2945.71(E), each day spent in jail “on a pending charge” acts as three days toward
speedy trial time; thus, 90 days time in jail would equate to 270 days using the
triple-count provision.
{¶16} Gibson was arrested on June 17, 2012. Because he was incarcerated
while awaiting trial, the state had 90 days to bring Gibson to trial, or until
September 17, 2012. The date of arrest is not included in the calculation of days in
determining a speedy trial violation. State v. Steiner, 71 Ohio App. 3d 249,
250-251, 593 N.E.2d 368 (9th Dist.1991); State v. Thieshen, 55 Ohio App. 2d 99,
379 N.E.2d 622 (3d Dist.1977). Thus, Gibson’s speedy trial time began on June
18, 2012.
{¶17} Although the trial did not commence until October 9, 2013, the trial
court had set the matter for trial several other times only to have it continued by
various tolling events. Under R.C. 2945.72, the time within which an accused
must be brought to trial is extended for various reasons, including motions filed by
the accused, continuances requested by the accused, the time required to secure
counsel for the accused, and reasonable continuances granted other than upon the
accused’s motion. See State v. Sanchez, 110 Ohio St. 3d 274, 2006-Ohio-4478, 853
N.E.2d 283; State v. Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283; State v.
Pirkel, 8th Dist. Cuyahoga No. 93305, 2010-Ohio-1858. The instant case was
repeatedly continued because of Gibson’s requests for continuances and other
various motions he filed.
{¶18} From June 18, 2012 until Gibson filed his discovery motions on July 9,
2012, 21 days had run on Gibson’s right to a speedy trial. From July 9, 2012 until
November 14, 2012, the time was tolled based on various motions and continuances
Gibson filed. During this tolling time, Gibson filed a motion for discovery and bill
of particulars, motion for reduced bond, several continuances of pretrials and a
supplemental motion to reduce bond. In counting this time, we took into
consideration that some of the times overlapped.
{¶19} Gibson’s speedy trial time commenced again on November 14 until
December 10, 2012, for a total of 26 single days. The time was then again tolled
from December 11, 2012 until March 12, 2013, because of various motions filed by
Gibson. During this time, the trial was also continued because the court was in
trial and defense counsel was also unavailable. Scheduling and docketing conflicts
are reasonable grounds for extending an accused’s trial date beyond the speedy trial
limit date. State v. Lee, 48 Ohio St. 2d 208, 357 N.E.2d 1095 (1976); State v.
Saffell, 35 Ohio St. 3d 90, 92, 518 N.E.2d 934 (1988).
{¶20} Gibson also filed a motion to suppress and a motion to disqualify
counsel.1 Neither of these was ruled upon by the trial court. However, “motions
filed by the defense toll the speedy trial time under R.C. 2945.72(E) for a
‘reasonable period’ to allow the state an opportunity to respond and the court an
opportunity to rule.” State v. Walker, 8th Dist. Cuyahoga No. 99239,
2013-Ohio-3522, ¶ 20, citing State v. Sanchez, 110 Ohio St. 3d 274,
2006-Ohio-4478, 853 N.E.2d 283. This court has interpreted the reasonableness
requirement of the rule to mean 30 days. Walker at ¶ 20; State v. Barb, 8th Dist.
Cuyahoga No. 90768, 2008- Ohio-5877, at ¶ 1. Therefore, the motion tolled the
time for an additional 30 days.
{¶21} Gibson’s new counsel also requested discovery, which does not appear
to have been responded to by the state. Thus, we attribute the reasonable amount
of time of 30 days to toll the time period. Pretrials were also continued six times at
Gibson’s request.
{¶22} On March 12, 2013, the time for Gibson’s speedy trial began to run
again until March 27, 2013, for an additional 16 days. From March 28 until his
trial on October 9, 2013, Gibson’s speedy trial time was tolled. During this time,
Gibson filed a request to receive copies of the materials given to counsel, which
was not ruled on by the trial court until after sentencing. Thus, the reasonable
1
At trial, Gibson did not protest his representation by assigned counsel.
tolling period of 30 days applies. Gibson also requested independent DNA testing.
This request resulted in the trial being continued five times in order to wait for the
DNA results. In addition, the trial was also continued once because the court and
defense counsel were unavailable due to trials in other cases. Gibson also filed a
motion to disqualify counsel, which does not appear to be ruled upon, thus the
reasonable 30-day time period again applies. Based on our calculations, which
takes into account any overlapping time, only 63 days had elapsed, which was well
below the 90 days for a speedy trial.
{¶23} Moreover, we note that on July 16, 2012, the state requested discovery
from Gibson that was never responded to by Gibson. This alone would have tolled
the time for trial for all but 30 days. The Ohio Supreme Court in State v. Palmer,
112 Ohio St. 3d 457, 2007-Ohio-374, 860 N.E.2d 1011, held as follows:
We conclude that a defendant’s failure to respond within a reasonable
time to a prosecution request for reciprocal discovery constitutes
neglect that tolls the running of speedy-trial time pursuant to R.C.
2945.72(D). Having so concluded, we answer the certified question in
the affirmative by holding that the tolling of statutory speedy-trial time
based on a defendant’s neglect in failing to respond within a
reasonable time to a prosecution request for discovery is not dependent
upon the filing of a motion to compel discovery by the prosecution. In
addition, we hold that a trial court shall determine the date by which
the defendant should reasonably have responded to a reciprocal
discovery request based on the totality of facts and circumstances of
the case, including the time established for response by local rule, if
applicable.
Id. at ¶ 24. Accordingly, Gibson’s statutory right to a speedy trial was not
violated.
{¶24} We also find that Gibson’s constitutional right to a speedy trial was not
violated. There are four broad factors within the framework for analyzing
constitutional speedy-trial claims: the length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo,
407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The length of delay is
the triggering mechanism. State v. Kraus, 2d Dist. Greene No. 2011-CA-35,
2013-Ohio-393, ¶ 23, citing Barker. “‘Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that
go into the balance.’” Id., quoting Barker. “Generally, courts have found that a
delay approaching one year becomes ‘presumptively prejudicial.’” State v.
Winn, 8th Dist. Cuyahoga No. 98172, 2012-Ohio-5888, ¶ 44, citing
Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520
(1992), fn. 1.
{¶25} In Winn, this court determined that over a year and a half between the
arrest and the defendant’s trial was not presumptively prejudicial because the
defendant “requested numerous continuances [and] filed many motions.” Winn at
¶ 44. This court found that all of these delays were for the defendant’s benefit and
thus contributed to the delay in timely prosecuting Winn. Id.
{¶26} The instant case was pending for over a year from Gibson’s arrest to
his trial. During that time, Gibson requested numerous continuances and filed a
multitude of motions. Because of the specific circumstances of this case, we
conclude the delay was not presumptively prejudicial and did not trigger the
consideration of the Barker factors, because the delays were for the defendant’s
benefit. See also State v. Castro, 8th Dist. Cuyahoga No. 100379, 2014-Ohio-2398
(constitutional speedy trial rights not violated even though the plea was taken over a
year after defendant’s arrest because the delay was caused by the defendant).
Further, even if we found the delay presumptively prejudicial, Gibson has not
demonstrated any prejudice and our independent review finds no such prejudice.
Accordingly, Gibson’s first assigned error is overruled.
Ineffective Assistance of Counsel
{¶27} In his second assigned error, Gibson argues his counsel was ineffective
for failing to protect his rights to a speedy trial.
{¶28} As we held above, Gibson’s rights to a speedy trial were not violated.
Therefore, his counsel was not ineffective. Accordingly, Gibson’s second assigned
error is overruled.
Manifest Weight of the Evidence
{¶29} In his third assigned error, Gibson argues his convictions are against
the manifest weight of the evidence.
{¶30} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, the Ohio Supreme Court addressed the standard of review for a criminal
manifest weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained
in State v. Thompkins (1997), 78 Ohio St. 3d 380, 1997-Ohio-52, 678
N.E.2d 541. In Thompkins, the court distinguished between
sufficiency of the evidence and manifest weight of the evidence,
finding that these concepts differ both qualitatively and quantitatively.
Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally
sufficient to support a verdict as a matter of law, but weight of the
evidence addresses the evidence’s effect of inducing belief. Id. at
386-387, 678 N.E.2d 541. In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s?
We went on to hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the manifest
weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a court
of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as
a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the
conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v.
Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211, 72 L. Ed. 2d 652.
Id. at ¶ 25.
{¶31} An appellate court may not merely substitute its view for that of the
jury, but must find that “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.” Thompkins at 387. Accordingly, reversal on
manifest weight grounds is reserved for “the exceptional case that the evidence
weighs heavily against the conviction.” Id.
{¶32} Gibson argues the victim was not credible because: (1) she admitted
she had a good relationship with the defendant prior to the incident, (2) she stated
she was not impaired after drinking for eight to nine hours, and (3), she failed to
tell the responding officer that Gibson forced her to stroke his penis and placed his
mouth on her breast. Based on these arguments, Gibson is not arguing the
testimony contradictory, but that it was not credible. We defer to the factfinder as
to whether the witness is credible because the factfinder is best able to weigh the
evidence and judge the credibility of a witness by viewing the demeanor, voice
inflections, and gestures of the witness testifying. See Seasons Coal Co. v.
Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1994); State v. DeHass, 10
Ohio St. 2d 230, 231, 227 N.E.2d 212 (1967).
{¶33} In fact, the trial court questioned the police officer whether his report
indicated that Gibson placed his mouth on the victim’s breast. Thus, the court was
well aware that the victim failed to tell the officer of this violation. The
responding officer also testified that although it was obvious the victim was
intoxicated, her speech was not slurred and “she knew what was going on.” We
conclude there is no reason to veer from the deference we give to the finder of facts
regarding credibility.
{¶34} Gibson also argues the DNA evidence failed to support the victim’s
testimony. There is no dispute that the DNA on the victim’s left foot matched
Gibson. This supported the victim’s testimony the assault started with Gibson
kissing her foot. The victim had testified that Gibson had touched her in the anal
area, but none of Gibson’s DNA was found in this location. However, the medical
records showed that the victim had defecated after the assault. The DNA analyst
stated that it is probable that “any foreign DNA would be pushed out with the
defecation.”
{¶35} The DNA found on the victim’s hand and inner thigh showed that
Gibson could not be excluded as a contributor to the mixed DNA. The DNA
analyst testified that the likelihood that an unrelated individual was the contributor
was one in 157 million for African-Americans, one in 857 million for Caucasians,
and one in 2 billion for Hispanics. Therefore, the chance that someone else was a
contributor was slim. The analyst acknowledged that DNA can be transferred
from sitting on a chair, but that “the probability of having the amount needed to
actually detect [the DNA] is slim.” Based on the analyst’s testimony, the DNA
results were not contradictory to the victim’s testimony.
{¶36} Gibson argues that the victim initially did not tell the nurse or the
officer that a key was in the door that she claimed she was unable to open.
However, at trial she testified that there was a key left in the door. Whether the
key was in the door or not, the victim was unable to open it because Gibson was
blocking the door. Gibson’s third assigned error is overruled.
Allied Offenses
{¶37} In his fourth assigned error, Gibson argues that his kidnapping with
sexual motivation count should have merged with the gross sexual imposition
counts because the kidnapping was incidental to the gross sexual imposition. We
review a trial court’s determination as to whether offenses should merge under a de
novo standard. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d
1245, ¶ 28.
{¶38} The Double Jeopardy Clauses of the United States Constitution and
Article I, Section 10, of the Ohio Constitution prohibit multiple punishments for the
same offense. State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 23. Accordingly, R.C. 2941.25(A) provides that when a defendant’s
conduct results in the commission of two or more allied offenses of similar import,
that conduct can be charged separately, but the defendant can be convicted and
sentenced for only one offense. R.C. 2941.25(A).
{¶39} In State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, the Ohio Supreme Court held that “when determining whether two offenses
are allied offenses of similar import subject to merger under R.C. 2941.25, the
conduct of the accused must be considered.” Id. at syllabus. The question is whether
it is possible to commit one offense and commit the other with the same conduct. If
the offenses correspond to such a degree that the conduct of the defendant can
constitute the commission of both of the offenses, then the offenses are of similar
import. Id. at ¶ 48.
{¶40} If the offenses are of similar import, the court must then determine if
they were in fact committed by the same conduct — a single act, committed with a
single state of mind. Id. at ¶ 49. Conversely, if the commission of one offense could
not 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. Id.
{¶41} In the instant case, kidnapping and gross sexual imposition can be
committed by the same conduct as some restraint is usually necessary to commit the
offense. We must determine whether Gibson committed the kidnapping with the
same intent he had to commit the gross sexual imposition. Here, Gibson had
kissed the victim’s foot and inner thigh before she got up to leave. He then
blocked the door, grabbed her hand and forced the victim to stroke his penis. The
question is whether the blocking of the door was merely incidental to Gibson’s
gross sexual imposition.
{¶42} The Ohio Supreme Court in State v. Logan, 60 Ohio St. 2d 126, 397
N.E.2d 1345 (1979), syllabus, held that when a kidnapping is merely incidental to
another underlying crime, there exists no separate animus sufficient to sustain
separate convictions. Id. On the other hand, when the kidnapping “subjects the
victim to substantial increase in risk of harm separate and apart from” the other
underlying crime, a separate animus exists for each offense sufficient to support
separate convictions. Id. Likewise, when, in a kidnapping, “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[.]” Id.
{¶43} Analyzing Gibson’s conduct under Logan establishes that the
kidnapping of the victim was incidental to the gross sexual imposition. Gibson’s
blocking the door was to facilitate the gross sexual imposition. The restraint was
not prolonged or substantial and did not subject the victim to a substantial risk of
harm separate and apart from the underlying offense of gross sexual imposition.
{¶44} It could be argued that Gibson’s blocking the door in order to plead
with the victim not to tell anyone about the acts he committed would be separate
from the gross sexual imposition. However, Gibson was specifically charged with
kidnapping with sexual motivation. Therefore, the kidnapping charge was related
to the gross sexual imposition.
{¶45} When we find reversible error in the imposition of multiple
punishments for allied offenses, we must reverse the sentence and remand for a new
sentencing hearing at which the state will elect which allied offense it will pursue
against the defendant. State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, 922
N.E.2d 182, ¶ 25.
{¶46} Accordingly, we sustain Gibson’s fourth assigned error and remand
for a new sentencing hearing consistent with and limited to this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. Case remanded to the trial
court for execution of sentence
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., (CONCURS
IN PART AND DISSENTS IN PART WITH
ATTACHED OPINION)
SEAN C. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN
PART:
{¶47} I concur fully in the judgment and analysis of the majority opinion
with the exception of paragraph No. 43, with which I respectfully dissent.
Although I accept the logical conclusion offered by the majority in that paragraph
that a sexual motivation specification may well tie the kidnapping to the gross
sexual imposition charge, I do not believe that fact is controlling for purposes of
merger. The recent body of cases from our Supreme Court detailing merger
analysis has taken us to a point where the conduct of the accused, and not a
specification, is the focal point of any analysis. See State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923; State v. Johnson, 128 Ohio St. 3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, and State v. Williams, 134 Ohio St. 3d 482,
2012-Ohio-5699, 983 N.E.2d 1245. For this reason, I dissent.