State v. Carver ( 2011 )

[Cite as State v. Carver, 2011-Ohio-5955.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24400
vs. : T.C. CASE NO. 03CR3323
KYLE CARVER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 18th day of November, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Barry W. Wilford, Atty. Reg. No. 0014891, 492 City Park Avenue,
Columbus, OH 43215
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Kyle Carver, appeals from a de novo
resentencing hearing the trial court conducted pursuant to State
v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, in order to
properly impose post release control.
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{¶ 2} The facts of this case were set forth in our previous
opinion, State v. Carver, Montgomery App. No. 21328,
2008-Ohio-4631, as follows:
{¶ 3} “{¶ 13} In late August 2003, Carver and ‘M’ were living
together in M's apartment in Dayton. They had met in March or April
of 2003 when both were working for a telecommunications company,
and they began dating in early August. Carver was approximately
forty years old, approximately fourteen years older than M.
{¶ 4} “{¶ 14} On August 28, 2003, Carver picked up M from work,
and they returned to the apartment. There, M discovered that her
television was missing. Carver told her that he had pawned the
television to get money. According to M, they argued and she later
found a pawn ticket from Don's Pawn Shop in the car. At some point,
Carver pulled out a crack pipe, lit it up, and had M watch him
smoke it. Around 9:00 p.m., Carver left, saying that he was going
to try to make some money to get her television back. Carver later
returned with a cousin, J.R., and Carver and M ‘had a few more
words.’ Carver grabbed M's car keys, which were for a Chevrolet
Cavalier owned by M's mother, and he left. M stated she thought
he had left at approximately 3:00 a.m.
{¶ 5} “{¶ 15} At approximately 3:00 a.m. on August 29, 2003,
‘B,’ M's mother, was awakened by someone banging on the door to
her apartment. B testified that she initially did not know who
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was at the door and she threatened to call the police if the person
did not leave. However, she then heard the mail slot open and
Carver's voice say, ‘Mom, it's Kyle, I need to talk to you about
[M].’ B let Carver into her apartment.
{¶ 6} “{¶ 16} After entering, Carver got a glass of water and
sat on the couch in the living room. Carver told B that ‘this isn't
really about [M]’ and he started to unbutton his shirt. B tried
to stand and move away, but Carver grabbed her and pulled her back
down to the couch. B testified that Carver put his hand on her
throat and threatened to strangle her if she screamed or made noise.
Carver continued to undress and told her that ‘he was going to
give [her] what [she] wanted.’ Carver then led B to her bedroom,
where he performed oral sex on her and had vaginal intercourse.
Afterwards, Carver and B returned to the living room so Carver
could smoke a cigarette; B also smoked a cigarette.
{¶ 7} “{¶ 17} B testified that she thought Carver would leave
at that point. Instead, after approximately twenty minutes, Carver
took B back to her bedroom, where they had vaginal intercourse
again. B stated that she tried to prevent Carver from turning her
over for anal intercourse by putting her legs around him. Carver
then put his fingers in her rectum. Carver and B returned to the
living room for more cigarettes, and Carver began to pull his pants
up. However, he apparently changed his mind and choked B until
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she was almost rendered unconscious. Afterward, Carver dragged
B back to the bedroom and had vaginal intercourse for a third time.
{¶ 8} “{¶18} Carver again went back to living room. There,
Carver pulled out a crack pipe, lit it, and smoked it. Carver told
B: ‘This is the reason I do stuff like this. I have a habit. This
makes me * * * do the bad things.’ Carver then stated that he had
to go home and tell M. Carver took B's cell phone and her keys
to the Cavalier. Carver started to hand B her cell phone, but then
stated, ‘I'll leave it out there on the dumpster and that'll give
me some time.’ B testified that Carver left at approximately 6:00
a.m. B and M both testified that Carver did not have permission
to use the vehicle.
{¶ 9} “{¶ 19} After Carver left her apartment, B crawled to
a neighbor's apartment, and the police were called. B was
transported to Good Samaritan Hospital, where she gave a statement
to a sheriff's deputy and a rape kit was completed, primarily by
Julia Rismiller, a registered nurse. Photographs were taken of
B's neck, which was red. Several witnesses testified that B's voice
sounded raspy and hoarse in the hospital.
{¶ 10} “{¶ 20} According to Mark Squibb of the Miami Valley
Regional Crime Laboratory, spermatozoa and semen were found on
the vaginal and anal swabs. After Carver provided a DNA sample
in February 2005, Squibb identified Carver as the source of the
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semen on the vaginal swab. No DNA analysis was performed on the
anal swab.
{¶ 11} “{¶ 21} B's car was recovered in September 2003 in
Greensboro, North Carolina, after it was involved in an accident.
M testified that Carver had a son who lived in Greensboro. In 2005,
Carver was ultimately arrested in Pennsylvania and returned to
Ohio.
{¶ 12} “{¶ 22} Carver did not present any evidence at trial.
However, his counsel asserted during opening statements that Carver
and B had engaged in consensual intercourse. Defense counsel's
cross-examination also emphasized that B was taking several
psychotropic medications at the time of the alleged sexual
assault.”
{¶ 13} In 2005 Defendant was indicted on one count of
unauthorized use of a motor vehicle, R.C. 2913.03(B), five counts
of rape, R.C. 2907.02(A)(2), one count of gross sexual imposition,
R.C. 2907.05(A)(1), one count of kidnapping, R.C. 2905.01(A)(4),
and one count of felonious assault, R.C. 2903.11(A)(1). Following
a jury trial, Defendant was found not guilty on four of the rape
charges, and the jury was unable to agree on a verdict on one of
the rape charges and the gross sexual imposition charge, which
resulted in the trial court declaring a mistrial on those offenses.
Defendant was found guilty of unauthorized use of a motor vehicle,
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kidnapping, and felonious assault. The trial court sentenced
Defendant to consecutive prison terms of twelve months for
unauthorized use of a motor vehicle, ten years for kidnapping,
and eight years for felonious assault, for a total sentence of
nineteen years.
{¶ 14} We affirmed Defendant’s conviction and sentence on
direct appeal. State v. Carver, Montgomery App. No. 21328,
2006-Ohio-5798. We subsequently granted Defendant’s motion to
reopen his appeal, and once again affirmed his conviction and
sentence. State v. Carver, Montgomery App.No. 21328,
2008-Ohio-4631. At no time in either his initial direct appeal
or in his reopened appeal did Defendant ever raise an allied
offenses issue regarding his kidnapping and felonious assault
convictions.
{¶ 15} On May 14, 2010, Defendant filed a motion in accordance
with then controlling law, State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, seeking a de novo re-sentencing hearing because
the trial court failed to properly impose post release control.
The trial court granted Defendant’s motion for resentencing.
On December 1, 2010, Defendant filed a motion to dismiss the
kidnapping charge based upon double jeopardy and the allied
offenses statute, R.C. 2941.25. The issue Defendant raised
pertained to the relationship between the kidnapping and the rape
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charges, not the kidnapping and the felonious assault charge.
On December 3, 2010, the trial court conducted a de novo
resentencing hearing. The court overruled Defendant’s motion to
dismiss the kidnapping charge, and reimposed the same prison terms
originally imposed. The court also imposed the appropriate terms
of post release control applicable to each of Defendant’s offenses.
{¶ 16} Defendant timely appealed to this court from his
re-sentencing.
ASSIGNMENT OF ERROR
{¶ 17} “THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE
OFFENSES OF KIDNAPPING AND FELONIOUS ASSAULT WERE ALLIED OFFENSES
UNDER R.C. § 2941.25, AND MERGED FOR CONVICTION AND SENTENCING
PURPOSES.”
{¶ 18} In his sole assignment of error, Defendant argues that
the trial court erred in sentencing him for both kidnapping and
felonious assault because those are allied offenses of similar
import that must be merged pursuant to R.C. 2941.25 and the rule
of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
{¶ 19} Defendant was found guilty of kidnapping in violation
of R.C. 2905.01(A)(4), which provides:
{¶ 20} “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
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person is found or restrain the liberty of the other person, for
any of the following purposes:
{¶ 21} “To engage in sexual activity, as defined in section
2907.01 of the Revised Code, with the victim against the victim’s
will.”
{¶ 22} Defendant was also found guilty of felonious assault
in violation of R.C. 2903.11(A)(1), which provides:
{¶ 23} “No person shall knowingly do either of the following:
{¶ 24} “Cause serious physical harm to another or to another’s
unborn[.]”
{¶ 25} In discussing allied offense of similar import, we stated
in State v. Freeders, Montgomery App. No. 23952, 2011-Ohio-4871:
{¶ 26} “{¶ 13} The Double Jeopardy Clause of the United States
Constitution, which applies to the States through the Fourteenth
Amendment prohibits multiple punishments for the same offense.
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10. However,
the Double Jeopardy Clause only prohibits a sentencing court from
prescribing greater punishment than the legislature intended. Id.,
at ¶11. The two-tiered test set forth in R.C. 2941.25, Ohio’s
multiple count statute, resolves both the constitutional and
state statutory inquiries regarding the General Assembly’s intent
to permit cumulative punishments for the same conduct. Id., at
¶12. However, it is not necessary to resort to that test when
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the legislature’s intent to impose multiple punishments is clear
from the language of the statute. Id., at ¶37.
{¶ 27} “{¶ 14} Ohio’s multiple counts statute, R.C. 2941.25,
provides:
{¶ 28} “{¶ 15} ‘(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.’
{¶ 29} “{¶ 16} ‘(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.’
{¶ 30} “{¶ 17} In State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, the Ohio Supreme Court announced a new test for
determining when offenses are allied offenses of similar import
that must be merged pursuant to R.C. 2941.25. Johnson overruled
the previous test announced in State v. Rance (1999), 85 Ohio St.3d
632, and held: ‘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 Supreme Court explained its holding at ¶47-51, stating:
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{¶ 31} “{¶ 18} ‘Under R.C. 2941.25, the court must determine
prior to sentencing whether the offenses were committed by the
same conduct. Thus, the court need not perform any hypothetical
or abstract comparison of the offenses at issue in order to conclude
that the offenses are subject to merger.’
{¶ 32} “{¶ 19} ‘In determining whether offenses are allied
offenses of similar import under R.C. 2941.25(A), the question
is whether it is possible to commit one offense and commit the
other with the same conduct, not whether it is possible to commit
one without committing the other. Blankenship, 38 Ohio St.3d at
119, 526 N.E.2d 816 (Whiteside, J., concurring) (“It is not
necessary that both crimes are always committed by the same conduct
but, rather, it is sufficient if both offenses can be committed
by the same conduct. It is a matter of possibility, rather than
certainty, that the same conduct will constitute commission of
both offenses.” [Emphasis sic]). If the offenses correspond to
such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other,
then the offenses are of similar import.’
{¶ 33} “{¶ 20} ‘If 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.” Brown, 119 Ohio St.3d 447,
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2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger,
J.,dissenting).’
{¶ 34} “{¶ 21} ‘If the answer to both questions is yes, then
the offenses are allied offenses of similar import and will be
merged.’
{¶ 35} “{¶ 22} ‘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.’
{¶ 36} “{¶ 23} Johnson is a welcome relief from the abstractions
of Rance and is more consistent with R.C. 2941.25 in that the tests
it imposes apply to the conduct in which the defendant actually
engaged. If that conduct can be construed to violate two or more
sections of the criminal code, the offenses involved are allied
offenses of similar import per R.C. 2941.25(A). The offenses must
then be merged unless the conduct in which Defendant engaged was
committed separately or with a separate animus as to each offense.
R.C. 2941.25(B).”
{¶ 37} Defendant Carver argues that his offenses of kidnapping
and felonious assault are allied offenses of similar import that
must be merged pursuant to R.C. 2941.25, because in placing his
hands around B’s neck and then choking her to the point of
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unconsciousness, he acted for the same purpose, which was to engage
in sexual activity with B. Therefore, he acted with but a single
animus, and his acts involved the same conduct.
{¶ 38} We agree with Defendant that, under the rule of State
v. Logan (1979), 60 Ohio St.2d 126, his kidnapping and felonious
assault charges were committed with the same animus, to the extent
that they are limited to engaging in that particular conduct,
because the restraint was merely incidental to the act of choking
B. However, that was not the only act of restraint B’s conduct
involved.
{¶ 39} Over the entire three-hour episode, Defendant restrained
B multiple times, all for the purpose of engaging in sexual activity
with her. Those kidnapping by restraint offenses, though
committed for the same purpose as the later kidnapping and felonious
assault, had a significance independent of the felonious assault.
Logan. Furthermore, they were committed separately from the
restraint that later kidnapping involved. The jury could find
Defendant guilty of kidnapping in violation of R.C. 2905.01(A)(4)
on the basis of evidence it heard concerning any one of those prior,
separate restraints. Being committed separately, those
kidnapping offenses do not merge with the later felonious assault.
{¶ 40} Defendant’s sole assignment of error is overruled. The
judgment of the trial court will be affirmed.
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FAIN, J., And HALL, J., concur.
Copies mailed to:
Andrew T. French, Esq.
Barry W. Wilford, Esq.
Hon. Barbara P. Gorman