2019-09

State v. Sanderson , 2019 Ohio 3589 ( 2019 )

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[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.
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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
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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
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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.
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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
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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
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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.
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{¶ 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.
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{¶ 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
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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
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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.
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{¶ 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.
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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
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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
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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).
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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.
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{¶ 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
weight of the evidence.
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.

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