State v. Small , 2011 Ohio 4086 ( 2011 )

[Cite as State v. Small , 2011-Ohio-4086.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10CAA110088
DEJUAN L. SMALL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 10CRI040203
JUDGMENT: Affirmed in part; reversed in part; and
remanded
DATE OF JUDGMENT ENTRY: August 16, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER
Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
DOUGLAS DUMOLT
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 10CAA110088 2
Hoffman, P.J.
{¶1} Defendant-appellant DeJuan Small appeals his conviction and sentence
entered by Delaware County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} In November of 2008, Kamal Shehata was involved in a relationship with
Jessica Beasley. At the time, Shehata was married with children. When Shehata’s wife
learned of the relationship, she and the children moved out of the marital home.
Beasley did not know Shehata was married during the relationship, and was upset with
him for the deception.
{¶3} On November 24, 2008, Shehata contacted Beasley, whom he knew as
“Juju,” asking her if she wanted to “hang out” at his home explaining his wife had moved
out. Around 9:00 p.m. that evening, Shehata picked up Beasley to take her back to his
house. During the drive, Beasley was texting and talking on the phone a lot. Beasley
then asked Shehata to stop at a CVS store for her to use the restroom. Shehata
explained they were close to his house if she wanted to wait, but Beasley insisted they
stop at the CVS store. Shehata observed Beasley using the telephone while inside the
CVS store.
{¶4} At the Shehata residence, Shehata cooked dinner and he and Beasley
smoked marijuana. After dinner, they went upstairs to his bedroom. A short time later,
Shehata heard a loud explosion downstairs, near the front door. He and Beasley
stepped to the bedroom door and saw four men running into the bedroom. All four men
had masks on their faces. The men asked about guns and money. The men then
Delaware County, Case No. 10CAA110088 3
proceeded to take Shehata and Beasley to the bathroom and tie them up. Shehata’s
hands and feet were bound with zip ties, and his hands were tied to the shower door.
During the incident, one of the men said to Shehata, “You fuck with my family.”
{¶5} The men stole a gun, televisions, computers, cameras and approximately
$12,000 in cash from Shehata during the incident. They also took his cell phone and
house phone.
{¶6} Shehata telephoned the police, but Beasley told him she did not want to
be involved with the police because there was a warrant for her arrest. Shehata called
a cab for her. When interviewed by the police, Beasley initially gave them a false name.
A detective later examined Beasley’s cell phone which contained messages giving
someone directions to Shehata’s house. When confronted with the messages, Beasley
confessed she was involved with the robbery.
{¶7} A subpoena of Beasley’s cell phone records led detectives to Appellant.
In exchange for her testimony against Appellant, Beasley entered a plea of guilty to a
lesser included offense of kidnapping, and she was sentenced to four years in prison.
{¶8} When questioned by the investigating officers, Appellant claimed to have
lost his cell phone, which was actually owned by his stepfather, but admitted to
communicating with Beasley on the night in question.
{¶9} At trial herein, Beasley testified she was angry with Shehata after learning
of his marriage during their relationship. She testified Appellant’s number was stored in
her phone as “nunu”, and on the night in question she texted him back and forth to
make sure he was following her to Shehata’s residence in order to facilitate a robbery.
Delaware County, Case No. 10CAA110088 4
At one point, Appellant lost them, and she had Shehata stop at the CVS store in order
to call Appellant.
{¶10} Appellant was indicted on two counts of aggravated burglary, involving
threats of physical harm and a deadly weapon, in violation of R.C. 2911.11(A)(1)(2); one
count of aggravated robbery with a deadly weapon, in violation of R.C. 2911.01(A)(1);
three counts of kidnapping to facilitate a felony and terrorize a victim, and creating a
substantial risk of serious physical harm, in violation of R.C. 2905.01(A)(2)(3) and
(B)(2); and a firearm specification. Following a jury trial, Appellant was found guilty on
all charges.
{¶11} At sentencing, the trial court merged the sentences on the aggravated
burglary and aggravated robbery counts. The court then sentenced Appellant to nine
years on the first count of aggravated burglary and a concurrent term of six years on the
first count of kidnapping. The court also imposed a consecutive three year term for the
firearm specification, a five year term of post-release control and ordered Appellant pay
$13,000 in restitution.
{¶12} Appellant now appeals, assigning as error:
{¶13} “I. DEFENDANT’S STATE AND FEDERAL DUE PROCESS RIGHTS TO
THE PRESUMPTION OF INNOCENCE WERE VIOLATED WHEN ONE OF THE
STATE’S WITNESSES TESTIFIED THAT DEFENDANT HAD TO BE TRANSPORTED
TO JAIL IN A POLICE CRUISER DURING TRIAL.
{¶14} “II. DEFENDANT’S STATE AND FEDERAL RIGHTS TO DUE PROCESS
WERE VIOLATED WHEN THE TRIAL COURT DISAPPROVED TRANSITIONAL
CONTROL UNDER R.C. 2967.26 AT SENTENCING.
Delaware County, Case No. 10CAA110088 5
{¶15} “III. DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND PROTECTION FROM DOUBLE JEOPARDY WERE
VIOLATED WHEN THE TRIAL COURT IMPOSED SENTENCE ON THE ALLIED
OFFENSES OF AGGRAVATED BURGLARY AND KIDNAPPING IN VIOLATION OF
R.C. 2941.25.”
I
{¶16} In the first assignment of error, Appellant argues his due process rights
were violated when Shehata testified to Appellant being transported to trial in a police
cruiser.
{¶17} During the trial of this matter, Shehata failed to comply with a subpoena to
testify; therefore, he was kept in jail overnight to ensure his presence to testify the
following day. During his testimony, Shehata stated:
{¶18} “Q. Do you see an individual seated at the defense table to my left?
{¶19} “A. I can’t tell, sir. I don’t know.
{¶20} “Q. Right. You can’t tell if that was the person who was there that
evening; right?
{¶21} “A. Yes.
{¶22} “Q. Has that man said anything to you about this case since this has
started?
{¶23} “A. Yesterday - -
{¶24} “Mr. Boger: Objection, Your Honor.
{¶25} “The Witness: Yesterday - -
{¶26} “The Court: I’ll overrule.
Delaware County, Case No. 10CAA110088 6
{¶27} “By Mr. Dumolt:
{¶28} “Q. Okay. You can go ahead and answer, if he said anything to you about
--
{¶29} “A. Yesterday, I was leaving the courthouse with my handcuffs, you know,
he was leaving at the same time. He was threatening me downstairs, ‘Don’t talk’. He
was like, ‘Don’t talk.’ The cops was with me. And he was trying to tell me, don’t talk,
with the face, you know, the threatening face.
{¶30} “Q. But to the best of your knowledge before yesterday, you had never
seen that man?
{¶31} “A. No, sir.”
{¶32} Tr. at 201-202.
{¶33} On cross-examination, Shehata testified:
{¶34} “A. He was like ‘Don’t talk’ and he was looking at me like this. I told the
cops - -
{¶35} “Q. So you were in the car?
{¶36} “A. Yes.
{¶37} “Q. You couldn’t hear words?
{¶38} “A. Yeah, but you can read lips.
{¶39} “Q. You could see his mouth moving?
{¶40} “A. Yes, and you could see his face, his eyes, looking at you, trying to tell
you, ‘Don’t talk’.
{¶41} “Q. How far away were you, a cruiser?
{¶42} “A. The cruiser, he was in that cruiser and I was in the cruiser next to him.”
Delaware County, Case No. 10CAA110088 7
{¶43} Tr. at 202-203.
{¶44} Appellant’s counsel moved for a mistrial as a result of the statement, and
the trial court denied the same. The following exchange occurred on the record,
{¶45} “The Court: Well, first of all, your client is sitting there; he’s got a deputy
sitting behind him and the other deputy is in the courtroom. I mean anybody would
have to be stupid not to know that’s he’s not under custody. He is in civilian clothes.
Okay. It was your client who, apparently, made the statement. So anything that comes
out, he’s brought upon himself. So, I’ll strike the portion of his answer regarding the
cruiser and deny your motion for mistrial.
{¶46} (End of side-bar.)
{¶47} “The Court: All right, folks, please disregard any part of the answer that
mentioned, cruiser. Go ahead, Mr. Boger.”
{¶48} Tr. at 204.
{¶49} In State v. Freeman, Stark App. No. 2006CA00388, 2007-Ohio-6270, this
Court held,
{¶50} “Appellant likens the witness's remark about Appellant's ‘jail shoes’ to
cases which hold that, ‘[a] criminal defendant is generally entitled to appear in court
without shackles, as the presumption of innocence may be undermined when the
defendant is presented in restraints.’ State v. Garrett, 5th Dist. No. 03-CA-49, 2004-
Ohio-2231, at ¶ 37 citing Zygadlo v. Wainwright (C.A.11, 1983), 720 F.2d 1221,
certiorari denied (1984), 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468; Gilmore v.
Armontrout (C .A.8, 1989), 861 F.2d 1061, certiorari denied (1989), 490 U.S. 1114, 109
Delaware County, Case No. 10CAA110088 8
S.Ct. 3176, 104 L.Ed.2d 1037; State v. Carter (1977), 53 Ohio App.2d 125, 7 O.O.3d
90, 372 N.E.2d 622.
{¶51} “The same has been held in regards to the defendant's appearance at trial
in jail clothing. In Estelle v. Williams, the United States Supreme Court stated that a
juror's judgment might be affected by a defendant's appearance in prison clothing.
(1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. ‘Being compelled to wear prison
or jail clothing, like being restrained, erodes the presumption of innocence.’ State v.
Evans, 4th Dist. No. 05CA3002, 2004-Ohio-2564, at ¶ 41 citing State v. Hecker (July
15, 1994), 4th Dist. No. 93CA10; see also State v. Watters, 8th Dist. No. 82451, 2004-
Ohio-2405. In order to determine whether a conviction must be overturned because an
accused wore jail clothing at trial, the relevant inquiry is whether the accused's
appearance in jail clothing was compelled. State v. Garrett, 5th Dist. No. 03-CA-49,
2004-Ohio-2231, at ¶ 12 citing State v. Dorsey (Apr. 23, 1998), 8th Dist. No. 72177.
{¶52} “In his Assignment of Error, Appellant does not argue that he was
compelled to appear at trial wearing shoes issued by the prison. Upon a review of the
record, there is no evidence that Appellant was compelled to stand trial before the jury
in prison-issue shoes. Appellant argues that he was prejudiced by the witness's
statement on direct examination that Appellant was wearing ‘jail shoes.’
{¶53} “Assuming arguendo the wearing of prison-issue shoes rose to the level of
an Estelle violation, we find the error to be harmless and must be disregarded under
Crim.R. 52(A), which reads:
{¶54} “ ‘Harmless error. Any error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded.’
Delaware County, Case No. 10CAA110088 9
{¶55} “The claimed error, under Estelle, supra, is of federal constitutional
magnitude. State v. Hecker, supra. Thus, we must apply the federal test of harmless
error, which is stated in Chapman v. California (1967), 386 U.S. 18. Chapman requires
that ‘ * * * before a federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable doubt. * * * ‘Chapman,
supra, at 24. Therefore, applying the Chapman test, we must examine the entire record
to determine whether it appears reasonably possible that the error might have materially
influenced the jury in arriving at its verdict.
{¶56} “Applying the above standard, we hold that the fact that Appellant
appeared before the jury in prison-issue shoes did not materially influence the jury's
verdict. We find the verdict would have been returned irrespective of Appellant's
physical appearance at trial. Thus, any error was harmless beyond a reasonable doubt.
{¶57} “Finally, we note the trial court instructed the jury that the attire described
by the witness did not indicate whether Appellant was currently incarcerated and that
the jury must presume Appellant innocent until his guilt is proved beyond a reasonable
doubt. It must be presumed that the jury followed this instruction. Pang v. Minch (1990),
53 Ohio St.3d 186, paragraph four of the syllabus.”
{¶58} It is well settled when jurors see a defendant in custody, there is no need
for a new trial when the encounter was “brief, inadvertent, and outside the courtroom.”
State v. Jaloweic (2001), 91 Ohio St.3d 220; State v. Linkous, Licking App. No. 08CA51,
2009-Ohio-1896.
{¶59} While we do not find the testimony relative to Appellant’s transportation in
a cruiser equivalent to appearing at trial in prison attire, we will nonetheless address
Delaware County, Case No. 10CAA110088 10
Appellant’s argument assuming, arguendo, the testimony rose to the level of an Estelle
violation. We must presume the jury followed the trial court’s instruction, and upon
review of the record we find any error would be harmless beyond a reasonable doubt.
There is substantial evidence upon which the jury based its verdict, including the
testimony of Jessica Beasley and the cell phone records linking Appellant to the
incident. Shehata’s brief and inadvertent reference to Appellant’s transportation in a
cruiser did not prejudice Appellant beyond a reasonable doubt.
{¶60} The first assignment of error is overruled.
II.
{¶61} In the second assignment of error Appellant argues the trial court erred in
including as part of Appellant's sentencing a provision not to consider transitional
control.
{¶62} R.C. 2967.26 allows for the creation of a transitional control program for
those nearing the end of their prison sentence. The statute reads, in pertinent part,
{¶63} “(2) At least three weeks prior to transferring to transitional control under
this section a prisoner who is serving a term of imprisonment or prison term for an
offense committed on or after July 1, 1996, the adult parole authority shall give notice of
the pendency of the transfer to transitional control to the court of common pleas of the
county in which the indictment against the prisoner was found and of the fact that the
court may disapprove the transfer of the prisoner to transitional control and shall include
a report prepared by the head of the state correctional institution in which the prisoner is
confined. The head of the state correctional institution in which the prisoner is confined,
upon the request of the adult parole authority, shall provide to the authority for inclusion
Delaware County, Case No. 10CAA110088 11
in the notice sent to the court under this division a report on the prisoner's conduct in the
institution and in any institution from which the prisoner may have been transferred. The
report shall cover the prisoner's participation in school, vocational training, work,
treatment, and other rehabilitative activities and any disciplinary action taken against the
prisoner. If the court disapproves of the transfer of the prisoner to transitional control,
the court shall notify the authority of the disapproval within thirty days after receipt of the
notice. If the court timely disapproves the transfer of the prisoner to transitional control,
the authority shall not proceed with the transfer. If the court does not timely disapprove
the transfer of the prisoner to transitional control, the authority may transfer the prisoner
to transitional control.”
{¶64} This Court recently addressed the issue raised herein in State v. Spears,
Licking App. No. 10 CA 95, 2011-Ohio-1538, holding:
{¶65} “While the statute does not specifically prohibit the court from denying the
transitional control prior to notice, we find to do so clearly thwarts the design and
purpose of the statute. The statute is designed to promote prisoner rehabilitation effort
and good behavior while incarcerated. To prematurely deny the possibility of transitional
control runs contra to those purposes. While the trial court retains discretion to
disapprove the transitional control, we find to do so in the sentencing entry prior to
notice from the adult parole authority is premature.”
{¶66} Based upon the rationale set forth in Spears, supra, Appellant's second
assignment of error is sustained.
Delaware County, Case No. 10CAA110088 12
III.
{¶67} In the third assignment of error, Appellant argues the trial court erred in
imposing sentence on the allied offenses of aggravated burglary and kidnapping, in
violation of R.C. 2941.25.
{¶68} R.C. 2941.25 states as follows: “(A) Where the same conduct by
defendant can be construed to constitute two or more allied offenses of similar import,
the indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
{¶69} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶70} Recently, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d
1405, 2010–Ohio–6314, modified the test for determining whether offenses are allied
offenses of similar import. In Johnson, the Ohio Supreme Court directed us to look at
the elements of the offenses in question and determine whether or not it is possible to
commit one offense and commit the other with the same conduct. If the answer to such
question is in the affirmative, the court must then determine whether or not the offenses
were committed by the same conduct. If the answer to the above two questions is yes,
then the offenses are allied offenses of similar import and will be merged. If, however,
the court determines that commission of one offense will never result in the commission
Delaware County, Case No. 10CAA110088 13
of the other, or if there is a separate animus for each offense, then the offenses will not
merge according to Johnson, supra.
{¶71} Appellant was convicted of aggravated burglary, in violation of R.C.
2911.11(A)(1)(2), which reads:
{¶72} “(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion of an
occupied structure, when another person other than an accomplice of the offender is
present, with purpose to commit in the structure or in the separately secured or
separately occupied portion of the structure any criminal offense, if any of the following
apply:
{¶73} “(1) The offender inflicts, or attempts or threatens to inflict physical harm
on another;
{¶74} “(2) The offender has a deadly weapon or dangerous ordnance on or
about the offender's person or under the offender's control.”
{¶75} Appellant was further convicted of kidnapping, in violation of R.C. 2905.01,
which reads:
{¶76} “(A) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall remove another
from the place where the other person is found or restrain the liberty of the other
person, for any of the following purposes:
{¶77} “(1) To hold for ransom, or as a shield or hostage;
{¶78} “(2) To facilitate the commission of any felony or flight thereafter;
Delaware County, Case No. 10CAA110088 14
{¶79} “(3) To terrorize, or to inflict serious physical harm on the victim or
another;
{¶80} “(4) To engage in sexual activity, as defined in section 2907.01 of the
Revised Code, with the victim against the victim's will;
{¶81} “(5) To hinder, impede, or obstruct a function of government, or to force
any action or concession on the part of governmental authority;
{¶82} “(6) To hold in a condition of involuntary servitude.
{¶83} “(B) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall knowingly do
any of the following, under circumstances that create a substantial risk of serious
physical harm to the victim or, in the case of a minor victim, under circumstances that
either create a substantial risk of serious physical harm to the victim or cause physical
harm to the victim:
{¶84} “(1) Remove another from the place where the other person is found;
{¶85} “(2) Restrain another of the other person's liberty.”
{¶86} In State v. Sidibeh, 192 Ohio App.3d 256, 2011-Ohio-712, the Tenth
District Court of Appeals recently addressed the issue of whether kidnapping was an
allied offense of aggravated robbery under Johnson, where the kidnapping was
incidental to the aggravated robbery, holding:
{¶87} “In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 44, the Supreme Court of Ohio recently overruled State v. Rance (1999), 85
Ohio St.3d 632, 710 N.E.2d 699, which held that R.C. 2941.25 called for an abstract
analysis of multiple offenses. The court in Johnson concluded that the statute ‘instructs
Delaware County, Case No. 10CAA110088 15
courts to examine a defendant's conduct—an inherently subjective determination.’ Id. at
¶ 52. Pursuant to Johnson, ‘[i]f the multiple offenses can be committed by the same
conduct, then the court must determine whether the offenses were committed by the
same conduct, i.e., ‘a single act, committed with a single state of mind.’ ’ Id. at ¶ 49,
quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50
(Lanzinger, J., concurring in judgment only). ‘If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be merged.’ Johnson at ¶ 50.
‘Conversely, if the court determines that the commission of one offense will never result
in the commission of the other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense, then, according to R.C. 2941.25(B),
the offenses will not merge.’ (Emphasis sic.) Id. at ¶ 51.
{¶88} “Appellee argues that under a subjective analysis, the kidnapping and
aggravated-robbery offenses pertaining to Raheem and Paris do not merge. It relies on
State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, syllabus, a
case predating Rance and applying a subjective review to the merger issue. In Logan,
the court 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 a 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
Delaware County, Case No. 10CAA110088 16
exists a separate animus as to each offense sufficient to support separate convictions.’
Id.{¶89} “Relying on Logan, appellee argues that merger does not apply to the
kidnapping and aggravated-robbery offenses pertaining to Raheem and Paris because
appellant forced them into prolonged restraint, moved them to a common area of the
home, and threatened to harm them if they did not cooperate. The restraint, however,
lasted no longer than the time it took for the commission of the aggravated robbery. Nor
was appellant's movement of the victims to a common area of the home ‘substantial so
as to demonstrate significance independent of’ the aggravated robbery. See Logan at
syllabus. See also State v. Williams, 10th Dist. No. 02AP–35, 2002-Ohio-4503, 2002
WL 2005815, ¶ 76–77 (concluding that a defendant's kidnapping offense was incidental
to, and merged with, an underlying offense when the defendant took the victim from the
bathroom to the living room before committing the underlying offense). The threat
appellant made to Raheem and Paris also occurred to facilitate the aggravated robbery
and did not escalate in a manner that substantially increased the risk of harm to those
victims separate and apart from the aggravated robbery.
{¶90} “Therefore, analyzing appellant's conduct under Logan establishes that
the kidnapping of Raheem and Paris was incidental to the aggravated robbery. In fact,
the court in Johnson has indicated that ‘the commission of an aggravated robbery * * *
would also constitute a kidnapping' when, as here, ‘ ‘a weapon that has been shown * *
* during the commission of a theft offense * * * forcibly restrain[ed] the liberty of
another.’ ’ Id. at ¶ 52, quoting State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905
N.E.2d 154, ¶ 21.
Delaware County, Case No. 10CAA110088 17
{¶91} “In the final analysis, the kidnapping against Raheem and Paris was
merely incidental to, and stemmed from the same conduct as, the aggravated robbery.
Consequently, the trial court committed plain error by failing to merge (1) the kidnapping
offense pertaining to Paris with the aggravated robbery offense pertaining to that victim
and (2) the kidnapping offense pertaining to Raheem with the aggravated robbery
offense pertaining to that victim. Thus, we sustain appellant's seventh assignment of
error.”
{¶92} In State v. Logan (1979), 60 Ohio St.2d 126, the Supreme Court set forth
the following factors to consider when considering whether kidnapping is an allied
offense of another charge,
{¶93} “The primary issue, however, is whether the restraint or movement of the
victim is merely incidental to a separate underlying crime or, instead, whether it has a
significance independent of the other offense. In the instant case, the restraint and
movement of the victim had no significance apart from facilitating the rape. The
detention was brief, the movement was slight, and the victim was released immediately
following the commission of the rape. In such circumstances, we cannot say that
appellant had a separate animus to commit kidnapping.
{¶94} “We adopt the standard which would require an answer to the further
question of whether the victim, by such limited asportation or restraint, was subjected to
a substantial increase in the risk of harm separate from that involved in the underlying
crime. If such increased risk of harm is found, then the separate offense of kidnapping
could well be found. For example, prolonged restraint in a bank vault to facilitate
Delaware County, Case No. 10CAA110088 18
commission of a robbery could constitute kidnapping. In that case, the victim would be
placed in substantial danger.”
{¶95} Following the rationale of Sidibeh and Logan set forth above; we find
Appellant’s commission of the kidnapping was merely incidental to the aggravated
burglary. Appellant took Shehata and Beasley to the other room and tied them up in
order to commit the aggravated burglary. The kidnapping was part and parcel of the
commission of the aggravated burglary and, like Sidibeh and Logan, the restraint and
movement had no significance apart from facilitating the commission of the aggravated
burglary. We find the restraint did not subject the victims to a substantial increase in the
risk of harm separate from that involved in the underlying crime. Accordingly, we find it
was plain error not to find the offenses to be allied offenses of similar import.
{¶96} The judgment of the Delaware County Court of Common Pleas is affirmed
in part; reversed in part; and the case is remanded for further proceedings to
resentence Appellant in accordance with the law and this Opinion.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Delaware County, Case No. 10CAA110088 19
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DEJUAN L. SMALL :
:
Defendant-Appellant : Case No. 10CAA110088
For the reasons stated in our accompanying Opinion, the judgment of the
Delaware County Court of Common Pleas is affirmed in part; reversed in part; and the
case is remanded for further proceedings in accordance with the law and our Opinion.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY