State v. Echols , 2015 Ohio 5138 ( 2015 )

[Cite as State v. Echols, 2015-Ohio-5138.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102504
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM ECHOLS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-580261-A
BEFORE: Celebrezze, A.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 10, 2015
ATTORNEY FOR APPELLANT
Christopher M. Kelley
75 Public Square
Suite 700
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Maxwell Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} Appellant, William Echols, appeals from his convictions for rape and kidnapping
arguing the charges stemmed from two incidents that should have been tried separately,
statements in medical records from one of the victims were admitted in error, the evidence was
insufficient to support convictions, and convictions for rape and kidnapping should have been
merged at sentencing as allied offenses. After a thorough review of the record and law, this
court affirms in part, reverses in part, and remands.
I. Factual and Procedural History
{¶2} Appellant was indicted on December 6, 2013, in the Cuyahoga County Common
Pleas Court. Charges included two counts of rape and two counts of kidnapping. They
stemmed from two separate incidents that occurred on June 7, 1994 and May 8, 1999. At trial
the following testimony was adduced.
{¶3} On June 7, 1994, K.C. was walking home late at night from a session of braiding a
friend’s hair. As she passed a large willow tree or shrub somewhere near East 93rd Street and
Woodland Avenue, a person jumped out from the tree and came up behind K.C. The individual
held a knife to her throat and threatened her. He moved her from the sidewalk to behind the tree
and raped her.
{¶4} The victim of a second attack, M.M., was unavailable to testify because she was
murdered in 2007. Her medical records documented her recounting of events that occurred on
May 8, 1999. In the course of her medical treatment she relayed that she had been raped. She
was walking home when a car pulled up and an unknown individual told her to get into the car or
he would hurt her. She complied. She was hit in the head with a brick and raped. She was
taken to the hospital by ambulance where she was treated and a sexual assault examination was
performed.
{¶5} Rape kits were collected from both victims and provided to Cleveland police.
K.C.’s rape kit remained in the custody of Cleveland police until it was tested in 2012. M.M.’s
rape kit was processed by forensic scientists in 1999, but a DNA profile was not developed at the
time. In 2012, M.M.’s rape kit was processed and a DNA profile of her attacker was developed.
Both DNA profiles resulted in matches to the same profile contained in a federal DNA database.
As a result, investigators with the Ohio Bureau of Criminal Investigation interviewed K.C. and
investigated the whereabouts of M.M. The investigators also obtained a sample of DNA from
appellant, the individual whose DNA profile was returned as a possible match from the federal
database. Two different forensic scientists testified that appellant’s DNA profile was consistent
with that of the attackers of M.M. and K.C., respectively. Both experts testified that appellant
could not be excluded as the contributor of the DNA profile developed from the respective rape
kits, and the probability of someone else being the contributor was one in 15 sextillion 610
quintillion.
{¶6} The jury returned guilty verdicts for two counts of rape (violations of R.C.
2907.02(A)(2)) and two counts of kidnapping (violations of R.C. 2905.01(A)(4)). The court
ordered a presentence investigation report and a psychological report related to appellant’s sexual
offender classification.
{¶7} At sentencing, the trial court determined that each count of rape did not merge with
each count of kidnapping. The court imposed an 11-year sentence for rape and a 10-year
sentence for kidnapping related to K.C. The court imposed two 10-year sentences for rape and
kidnapping relating to M.M. The court also classified appellant as a sexual predator under
Ohio’s former classification scheme in effect at the time of appellant’s offenses.
{¶8} From these convictions and sentences, appellant appeals assigning the following
errors:
I. The trial court erred by denying [appellant’s] motion for a separate trial, which
resulted in prejudice to the defendant and violated his constitutional right to a fair
trial.
II. The trial court erred by admitting the medical records of [M.M.] in violation
of [appellant’s] Sixth Amendmendment right to confrontation and Crawford.
III. The evidence adduced at trial was insufficient as a matter of law to prove
beyond a reasonable doubt [appellant] was guilty of rape and kidnapping as set
forth in counts three and four.
IV. The trial court erred when it failed to find the rape and kidnapping offenses
were allied offenses of similar import and merge them for sentencing purposes.
II. Law and Analysis
A. Joinder of Multiple Offenses
{¶9} Appellant first claims he was prejudiced by the joinder of charges that were
unrelated and should have been tried separately. Prior to trial, he moved the court for separate
trials arguing the charges relating to each victim were unrelated and shared no common plan or
scheme. The trial court denied the motion, and a single trial encompassing all the charges was
had.
{¶10} Joinder of multiple offenses for trial is governed by Crim.R. 8(A). This rule
provides,
[t]wo or more offenses may be charged in the same indictment, information or
complaint in a separate count for each offense if the offenses charged, whether
felonies or misdemeanors or both, are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan,
or are part of a course of criminal conduct.
See also R.C. 2941.04. The preservation of the public fisc, conservation of judicial resources,
reduction of the opportunity for inconsistent verdicts, and diminution of inconvenience to
witnesses favor joining multiple criminal offenses in a single trial under Crim.R. 8(A) so long as
the joinder is not unduly prejudicial. State v. Lott, 51 Ohio St. 3d 160, 163, 555 N.E.2d 293
(1990). “Two or more offenses can be joined if they are of the same or similar character.”
State v. Franklin, 62 Ohio St. 3d 118, 122, 580 N.E.2d 1 (1991), citing State v. Torres, 66 Ohio
St.2d 340, 343, 421 N.E.2d 1288 (1981). Crim.R. 14 offers a remedy for improper joinder
provided a defendant can demonstrate prejudice. Id. Prejudice is shown where “(1) [a
defendant’s] rights were prejudiced by the failure to sever, (2) [the defendant] provided the court
sufficient information to allow it to weigh the benefits of joinder against his right to a fair trial,
and (3) the trial court abused its discretion by refusing to sever the charges for trial given the
information it had been provided.” (Emphasis added.) State v. Echols, 128 Ohio App. 3d 677,
691-692, 716 N.E.2d 728 (1st Dist.1998).
{¶11} Once prejudice is shown,
[t]he prosecutor may counter the claim of prejudice in two ways. The first is the
“other acts” test, where the state can argue that it could have introduced evidence
of one offense in the trial of the other, severed offense under the “other acts”
portion of Evid.R. 404(B). The second is the “joinder” test, where the state is
merely required to show that evidence of each of the crimes joined at trial is
simple and direct. If the state can meet the joinder test, it need not meet the
stricter “other acts” test. Thus, an accused is not prejudiced by joinder when
simple and direct evidence exists, regardless of the admissibility of evidence of
other crimes under Evid.R. 404(B).
(Citations omitted.) Franklin at 122. This court reviews the trial court’s decision for an abuse of
discretion. State v. Strobel, 51 Ohio App. 3d 31, 554 N.E.2d 916 (3d Dist.1988), citing Braxton
v. Maxwell, 1 Ohio St. 2d 134, 135, 205 N.E.2d 397 (1965).
{¶12} Here, appellant claims the fact that the state alleged that appellant committed
crimes of rape prejudiced him. He argues that where the state alleges two separate incidents of
rape, the jury would likely misuse the evidence of multiple violent sexual assaults and create a
hostile and unfavorable opinion prior to hearing any evidence. In his motion for separate trials,
appellant merely asserted:
1. That the Defendant William Echols is charged with two counts of Rape and
Kidnapping.
2. That both alleged victims and their incidents are unrelated.
3. That both incidents allegedly took place five years apart.
4. That it would be highly prejudicial to have one trial with two unrelated alleged
incidents.
5. That a severence of both victims at trial is necessary to ensure that Mr. Echols
would not be prejudiced in the case at bar.
{¶13} The trial court conducted a hearing on the motion to sever at which appellant’s
counsel stated the following in support:
The reason for this motion in particular is the fact that these 2 crimes,
alleged crimes, happened 5 years apart. There’s no same modus operandi. The
situation tramples on my client’s rights. It’s going to be unfairly prejudicial for
him for a jury to look at 2 situations that are 5 years apart and have them keep a
— not draw a conclusion that he might have done something wrong. We think
it’s only fair. There are 2 separate victims, 2 separate timeframes and he should
have 2 separate trials, your honor.
{¶14} The court ruled,
At this point, the court has not heard sufficient factual arguments with respect
to prejudice. I haven’t heard the specific prejudice other than human nature. Jurors
will be presumed to follow my instructions, which I’ll be extremely explicit in my
voir dire and my instructions that they are to separately consider each of these counts
uninfluenced by their deliberations on the other counts.
The fact pattern I’ve read in the state’s brief, which hasn’t been challenged by the
defendant, is straightforward and rather simple. It doesn’t appear it would be complicated in any
way for the jurors to separate these 2 allegations from each other. Jurors are presumed to follow
my instructions of law, and so they will. And I’ll make sure that my instructions are clear and I
will voir dire them extensively with respect to these issues, so it’s absolutely clear what they’re
to do in this matter, not consider one when they deliberate on the other.
And, of course, in every rape case there’s going to be, you know, supposedly some
prejudicial facts with respect to the defendant. Otherwise, there wouldn’t be an indictment.
There wouldn’t be a case. And the presence of DNA, forensic analysis of that kind of evidence
doesn’t create more of an unfair prejudice just because there may be some DNA evidence.
That’s just the nature of the evidence in these cases.
So those are not specific enough reasons for the court to sever
the allegations.
{¶15} The trial court’s decision to deny the motion based on the arguments made is
reasoned and does not constitute an abuse of discretion based on a lack of demonstrated
prejudice.
{¶16} Even assuming appellant’s bald allegations constituted sufficient evidence of
prejudice, the state counters that the crimes are of similar character and the evidence going to
each is simple and direct. “The object of the ‘simple and distinct’ test is to prevent the jury from
improperly considering evidence of various crimes as corroborative of each other. ‘The very
essence of the rule is that the evidence be such that the jury is unlikely to be confused by it or
misuse it.’” Echols, 128 Ohio App. 3d 677, 694, 716 N.E.2d 728, quoting Drew v. United States,
331 F.2d 85 (D.C.Circ.1964). “Ohio appellate courts routinely find no prejudicial joinder where
the evidence is presented in an orderly fashion as to the separate offenses or victims without
significant overlap or conflation of proof.” State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and
L-09-1225, 2010-Ohio-4202, ¶ 33, collecting cases.
{¶17} The rapes of K.C. and M.M. are similar crimes, but entirely distinct in proof. The
evidence used to establish the elements of each offense was simple and direct. Each rape kit
was analyzed separately, by separate laboratory technicians. The crimes were investigated
together, but none of the evidence overlapped between the two incidents.
{¶18} Appellant claims that any evidence requiring expert witness testimony is not
simple and direct. However, that argument is unfounded here.
{¶19} DNA evidence, similar to fingerprint evidence, is presented through experts trained
in its analysis. In Lott, the Ohio Supreme Court held that evidence, including fingerprints, used
in the prosecution of Lott for various theft offenses that occurred three years apart was simple
and direct. Lott, 51 Ohio St. 3d at 164, 555 N.E.2d 293. In the present case, the testifying
laboratory technicians explained DNA evidence, including how it is collected, maintained, and
analyzed. This is expert testimony beyond the normal understanding of a juror. The evidence,
although scientific in nature and presented through expert testimony, is simple in its application.
{¶20} Accordingly, the trial court did not abuse its discretion in denying appellant’s
motion to sever.
B. Medical Records and the Confrontation Clause
{¶21} Appellant next argues that the court erred in allowing testimony about and the admission
of M.M.’s medical records. Specifically, a section in the records contains a description of the
events that caused M.M. to seek treatment. Her treating physician read the following statement
from M.M.’s records:
Chief complaint: sexual assault. History of present illness: this is a 29-year-old
female brought to emergency department by ambulance because today at out [sic]
around 2:10 p.m., May 8, 1999, she was walking from home down the street and a
man pulled up in his car and told her to get in the car or he would break her head.
The patient did get in the car and he did reach down, and she became afraid of
whether he had a weapon, but he did have a brick in his hand and he did hit her
over her head multiple times with a brick. They pulled down the street and forced
her to have sex with him, both orally and vaginally. She is not sure whether he
stepped on her, or if the brick fell from his hand onto her right foot, because the
right foot is bruised. She does not recall when her last tetanus. No loss of
consciousness. She is not sure whether he did ejaculate in her vagina or not. Also,
he did force her to — he did force her for oral sex and vaginal penetration, but no
anal penetration. No nausea, no vomiting. No loss of consciousness. No focal
weakness or numbness. No bleeding vaginally and no vaginal discharge. No
trouble with her urination or bowel movement. No chest pain or shortness of
breath. No abdomen pain. No change in her mental status.
{¶22} In the seminal case, the Supreme Court held that the use of testimonial statements
at trial violated the Sixth Amendment’s Confrontation Clause where the declarant was not
subject to cross-examination. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004), syllabus. Since that time, the court has been wrestling with the scope of
this holding and determining what constitutes a testimonial statement. Most recently, the Court
stated,
A statement qualifies as testimonial if the “primary purpose” of the conversation
was to “creat[e] an out-of-court substitute for trial testimony.” Michigan v.
Bryant, 562 U.S. 344, 369, 131 S. Ct. 1143, 179 L. Ed. 2d 93. In making that
“primary purpose” determination, courts must consider “all of the relevant
circumstances.” Ibid. “Where no such primary purpose exists, the admissibility of
a statement is the concern of state and federal rules of evidence, not the
Confrontation Clause.” Id., at 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93. But that does
not mean that the Confrontation Clause bars every statement that satisfies the
“primary purpose” test. The Court has recognized that the Confrontation Clause
does not prohibit the introduction of out-of-court statements that would have been
admissible in a criminal case at the time of the founding. See Giles v. California,
554 U.S. 353, 358-359, 128 S. Ct. 2678, 171 L. Ed. 2d 488; Crawford, 541 U.S., at
56, n. 6, 62, 124 S. Ct. 1354, 158 L. Ed. 2d 177. Thus, the primary purpose test is a
necessary, but not always sufficient, condition for the exclusion of out-of-court
statements under the Confrontation Clause.
Ohio v. Clark, 576 U.S.___, 135 S. Ct. 2173, 2176, 192 L. Ed. 2d 306 (2015).
{¶23} Appellant points to an Ohio Supreme Court to support his position that the records
and testimony relating to M.M.’s statements were improperly admitted. State v. Arnold, 126
Ohio St. 3d 290, 2010-Ohio-2742, 933 N.E.2d 775. There, the court applied the primary purpose
test to determine whether statements made by a child victim of sexual assault to a social worker
at a child-advocacy center were testimonial. Id. at ¶ 28. The primary purpose test seeks to
quantify the primary objective of the questioning:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
{¶24} The Arnold court applied this test to the unique situation presented in the case.
The child-advocacy center’s procedures were unique and included interview questions designed
to gather forensic information to investigate and prosecute offenders as well as questions relating
to diagnosis and treatment. Id. at ¶ 33. The court found that the interviews served dual
purposes, and the trial court should have limited admission of statements made primarily for the
purpose of prosecution. Id. at ¶ 44.
{¶25} More recently, in Clark, the United States Supreme Court held that statements
made to a teacher by a student regarding physical abuse were nontestimonial even though the
teacher had a mandatory duty to report the allegations to police. Id. at 2182-2183. The court
held that the context of the conversation was to address an ongoing emergency. Id. at 2181.
The court reckoned “[s]tatements made to someone who is not principally charged with
uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.” Id. at 2182. Here, there is no indication of the
type of dual role the social workers presented in Arnold. Further, in light of Clark, even if there
were, it is doubtful statements made to medical professionals engaged in the treatment of a
patient in an emergency room situation would be deemed testimonial. The questioning of M.M.
by medical personnel did not carry the same investigatory purpose as that present in Arnold.
{¶26} Recently, this court rejected similar arguments raised here and held that statements
elicited during questioning by medical personnel for purposes of medical diagnosis and treatment
are not barred from trial by the Confrontation Clause. State v. Bowleg, 8th Dist. Cuyahoga Nos.
100263 and 100264, 2014-Ohio-1433, ¶ 14-15, citing State v. Muttart, 116 Ohio St. 3d 5,
2007-Ohio-5267, 875 N.E.2d 944. Therefore, the Confrontation Clause does not bar admission
of M.M.’s statements.
{¶27} Statements made for the purposes of medical diagnosis and treatment are a clearly
defined, long-standing exception to the rules of hearsay. Evid.R. 803(4) provides an exception
for “[s]tatements made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Further, “courts have consistently found that a description of the encounter and identification of
the perpetrator are within scope of statements for medical treatment and diagnosis.” In re D.L.,
8th Dist. Cuyahoga No. 84643, 2005-Ohio-2320, ¶ 21, citing State v. Stahl, 9th Dist. Summit No.
22261, 2005-Ohio-1137, ¶ 15; State v. Scott, 3d Dist. Hardin No. 6-94-17, 1995 Ohio App.
LEXIS 2527 (June 7, 1995); State v. Shephard, 8th Dist. Cuyahoga No. 62894, 1993 Ohio App.
LEXIS 3387 (July 1, 1993).
{¶28} That is not to say that any statement made by a declarant in aid of treatment is
admissible under the rule: “The exception is limited to those statements made by the patient
which are reasonably pertinent to an accurate diagnosis and should not be a conduit through
which matters of no medical significance would be admitted.” Staff Note to Evid.R. 803(4).
{¶29} Appellant’s Sixth Amendment rights were not violated by the introduction of
medical records containing M.M.’s statements and the testimony of her treating physician.
Those statements included only a description of the attack reasonably related to medical
diagnosis and treatment. Appellant’s second assignment of error is overruled.
C. Sufficiency
{¶30} Appellant also argues that there is insufficient evidence to support his convictions
for rape and kidnapping of M.M. The evidence supporting these convictions comes down to
M.M.’s description of her rape contained within the medical records and the DNA evidence.
{¶31} Whether evidence is legally sufficient to sustain a verdict is a question of law. State
v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency is a test of
adequacy. Id. The evidence is construed in the light most favorable to the prosecution to
determine whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. When reviewing the sufficiency of the evidence the court does
not weigh the credibility of the witnesses. State v. Yarbrough, 95 Ohio St. 3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{¶32} Rape, as charged in this case, is defined in R.C. 2907.02 (A)(2) as engaging “in
sexual conduct with another when the offender purposely compels the other person to submit by
force or threat of force.” Kidnapping, as charged here, is defined in R.C. 2905.01(A)(4) as
follows: “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 * * * [t]o engage in
sexual activity, as defined in [R.C] 2907.01 * * * with the victim against the victim’s will[.]”
{¶33} There is sufficient evidence in the record that appellant raped M.M. She was
attacked in the middle of the day by a man wielding a brick. Her statement contained within her
medical records provide sufficient information to determine that M.M. did not have consensual
sex, but was beaten and raped. The DNA evidence collected at the hospital soon after the attack
also identified appellant as her attacker within a reasonable degree of certainty.
{¶34} Her statement, in no uncertain terms, indicated she was raped. This evidence,
viewed in a light most favorable to the state, is sufficient to sustain appellant’s conviction for the
rape of M.M.
{¶35} Kidnapping here requires the restraint of one’s liberty by another to engage in
sexual activity against the restrained individual’s will. Inherent in the act of raping a conscious
individual is a restraint of liberty. State v. Anthony, 8th Dist. Cuyahoga No. 101847,
2015-Ohio-2267, ¶ 57. Therefore, there is also sufficient evidence to support kidnapping. The
evidence of kidnapping also goes beyond a restraint incidental to rape. Here, the record
indicates appellant forced M.M. into his car under threat of harm and drove her some distance
away for the purpose of having sex with her.
D. Allied Offenses
{¶36} Appellant finally claims that each conviction of rape should merge with each
conviction of kidnapping.
{¶37} Pursuant to R.C. 2941.25(A), where a defendant’s conduct results in the
commission of two or more “allied offenses” of similar import, that conduct can be charged
separately, but the defendant can be convicted and sentenced for only one offense. This court
reviews the trial court’s decision de novo, but must give deference the factual findings made by
the trial court. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶
25-28.
{¶38} The Ohio Supreme Court has previously addressed whether kidnapping and rape
are allied offenses that should merge prior to sentencing. State v. Logan, 60 Ohio St. 2d 126,
397 N.E.2d 1345 (1979). While this case deals with a since rejected standard applied to allied
offenses, it is instructive. That court held:
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 commission of a robbery could constitute kidnapping. In
that case, the victim would be placed in substantial danger.
Id. at 135. This test for an increase in the risk of harm attributed to the actions of the accused
was also incorporated into the current analysis used in the allied offense context. State v. Ruff,
143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892. There, the court set forth the factors to
consider in determining whether offenses should merge:
A trial court and the reviewing court on appeal when considering whether there
are allied offenses that merge into a single conviction under R.C. 2941.25(A)
must first take into account the conduct of the defendant. In other words, how
were the offenses committed? If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses:
(1) the offenses are dissimilar in import or significance — in other words, each
offense caused separate, identifiable harm, (2) the offenses were committed
separately, and (3) the offenses were committed with separate animus or
motivation.
(Emphasis added.) Id. at ¶ 25. When analyzing similar import, the court focused on separate
and identifiable harm similar to its prior holding in Logan. Id. at ¶ 26. Here, the evidence
presented was that the asportation of K.C. was slight. K.C. was moved from the sidewalk to
behind a tree next to the sidewalk. There was no increased risk of harm associated with this
movement apart from that associated with the sexual assault. This movement was done for the
purpose of raping K.C. with no separate, identifiable harm. The movement was done in
conjunction with the rape, and was not separated by any significant length of time or distance.
{¶39} This must be contrasted with a recent case where this court held that the rape and
kidnapping offenses did not merge:
In this case, the trial court considered that [the defendant] and the other
assailant took [the victim] from a Cleveland bar, ostensibly to give her a ride to
the gas station to buy cigarettes and then home. Instead, the men took her to a
house on Trowbridge Avenue, denied her entrance to use the bathroom, and then
took her to a hotel in Lakewood. Once inside the hotel, the men made her drink
an unknown substance and then the white male held her down on the bed and
raped her. When he was finished assaulting her, he told [the defendant] it was
“his turn,” and [the defendant] made [the victim] change positions so he could
rape her. The men then left [the victim] alone at the hotel. * * *.
We agree with the trial court that the kidnapping was a “long chain of
events” that was not merely incidental to the rape; therefore, on these facts, we
agree with the trial court that the offenses of rape and kidnapping do not merge.
State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 49-50. Keeler is a case on
the other end of the spectrum from the present case. Here, the movement was slight, occurred
close in time to the rape, and was done solely to facilitate the rape. Therefore, the trial court
erred when it failed to merge the rape and kidnapping counts related to K.C.
{¶40} This also contrasts with the movement of M.M. She was abducted from the bus
stop. Appellant forced her to get into his vehicle, hit her with a brick once in the car, and he
drove her away from the area. The trial court’s finding that this movement was significant and
encompassed an increased risk of harm is supported. The asportation of M.M. constituted a
separate crime for which appellant may be separately punished.
{¶41} Therefore, appellant’s sentences related to K.C. must be vacated. The court must
conduct a new sentencing hearing on the charges related to K.C. where the state shall elect on
which charge the court will impose sentence.
III. Conclusion
{¶42} Appellant was not prejudiced by the joinder into a single trial of allegations of rape
and kidnapping relating to separate victims that occurred five years apart. The evidence going to
each incident was simple and direct, with no chance of confusion of the issues or evidence
adduced as to each. Appellant’s Sixth Amendment confrontation right was also not abridged by
the admission of testimony and medical records that related to statements made for medical
diagnosis and treatment. These records, combined with appellant’s DNA recovered from the
rape examination of one of the victims, constituted sufficient evidence of appellant’s guilt.
However, the court erred when it did not merge the count of kidnapping with the rape count
involving K.C. A new sentencing hearing must be conducted where the state shall elect on
which charge related to K.C. the court will impose sentence.
{¶43} Judgment is affirmed in part, reversed in part and remanded to the
lower court for further proceeding consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
_________________________________________________________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR