State v. Kappenhagen

[Cite as State v. Kappenhagen, 2014-Ohio-3916.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100798
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL J. KAPPENHAGEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-567907-A
BEFORE: McCormack, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 11, 2014
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Bldg., Suite 940
526 Superior Ave.
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Steven N. Szelagiewicz
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Michael J. Kappenhagen, appeals his conviction for
kidnapping with firearm specifications, tampering with evidence with a firearm
specification, and having weapons while under disability. Kappenhagen also appeals his
consecutive sentence of 19 years. After a thorough review of the record, we affirm.
Procedural History
{¶2} Kappenhagen was indicted on a multiple-count indictment as follows:
Count 1, aggravated burglary in violation of R.C. 2911.11(A)(2); Count 2, felonious
assault of Cornell Stevenson in violation of R.C. 2903.11(A)(2); Count 3, kidnapping of
Robin Johnson in violation of R.C. 2905.01(A)(3); Count 4, felonious assault of Robin
Johnson in violation of R.C. 2903.11(A)(2); Count 5, aggravated menacing of Patrolman
Neil T. Pesta in violation of R.C. 2903.21(A); Count 6, kidnapping of minor child, M.J.,
in violation of R.C. 2905.01(A)(1); Count 7, kidnapping of minor child, C.S., in violation
of R.C. 2905.01(A)(1); Count 8, tampering with evidence in violation of
R.C. 2921.12(A)(1); and Count 9, having weapons while under disability in violation of
R.C. 2923.13(A)(2).
{¶3} Counts 1-4, 6, and 7 contained the following specifications: one-year
firearm specification in violation of R.C. 2941.141(A); three-year firearm specification in
violation of R.C. 2941.145(A); forfeiture of property under R.C. 2941.1417(A); notice of
prior conviction under R.C. 2929.13(F)(6); and repeat violent offender specification
(“RVO”) under R.C. 2941.149(A). The notice of prior conviction and the RVO were
bifurcated. Counts 5 and 9 contained the forfeiture specification. And Count 8
contained both firearm specifications as well as the forfeiture specification.
{¶4} Kappenhagen was referred to the psychiatric clinic for competency and
sanity evaluations on November 26, 2012. The competency and sanity reports, which
were prepared on January 3, 2013, stated that Kappenhagen had no diagnosis, he was sane
at the time of the alleged acts, and he was competent to stand trial and assist in his own
defense. The parties stipulated to the contents in the reports.
{¶5} Prior to trial, the state filed a motion to introduce evidence of other acts
under Evid.R. 404(B), regarding Kappenhagen’s possession of firearms, which the trial
court granted.
{¶6} The defense stipulated to the following evidence: a certified notice of a
prior conviction of aggravated robbery with a one-year firearm specification (State’s
exhibit No. 1); the DNA laboratory examination report indicating Kappenhagen’s DNA
recovered from the weapons (State’s exhibit No. 2); and the police report indicating the
operability of the firearms (State’s exhibit No. 3).
{¶7} A jury trial commenced on November 4, 2013. At the close of the state’s
case and again at the close of trial, defense counsel moved for a Crim.R. 29 judgment of
acquittal. The trial court denied both motions.
{¶8} The jury returned a verdict of not guilty on Counts 1, 2, 4, 5, 6, and 7. The
jury returned a verdict of guilty on Counts 3, 8, and 9. In addition, the jury found
Kappenhagen guilty of the one-year and three-year firearm specifications and the
forfeiture specification on Count 3, as well as finding that the victim was released in a
safe place unharmed. The jury also found Kappenhagen guilty of the one-year firearm
and forfeiture specifications on Count 8. The trial court then found Kappenhagen guilty
of the RVO specification and notice of prior conviction. The court ordered a presentence
investigation report and scheduled the matter for sentencing.
{¶9} On December 12, 2013, the trial court sentenced Kappenhagen to the
maximum eight years incarceration on Count 3, kidnapping of Robin Johnson, plus three
years for the firearm specification, merging the one-year and the three-year specifications.
The trial court sentenced Kappenhagen to 36 months on Count 8, tampering with
evidence, and 36 months on Count 9, having weapons while under disability. Finally,
the court imposed an additional eight years on the RVO specification to Count 3. The
court ordered the sentence for Counts 3, 8, and 9 to run concurrently and the sentence for
the firearm specification and the RVO specification to be served consecutively to and
prior to the sentence in Count 3, the underlying charge, for an aggregate sentence of 19
years.
{¶10} Kappenhagen filed this timely appeal.
Evidence Presented at Trial
{¶11} The victim, Robin Johnson, testified that she met Kappenhagen in or about
April 2012. She testified that she went out with Kappenhagen approximately six times
before she moved into the upstairs of a home on Hosmer Avenue with her two minor
children, M.J. and C.S., in September. Other than her two children, no one resided in
the home with her. Kappenhagen visited Johnson approximately eight times at the
Hosmer Avenue home, sometimes just “popping over,” uninvited, and sometimes
spending the night. She stated that she considered Kappenhagen her friend and she never
considered him as a boyfriend.
{¶12} Johnson testified that she ended the relationship with Kappenhagen on the
night of October 4, 2012, telling Kappenhagen that she needed her space and he needed to
find “somewhere else to go.” There was an argument, and Kappenhagen removed his
few belongings from the home and left.
{¶13} Later that evening, Kappenhagen returned to Johnson’s home, where
Johnson was sitting in the kitchen with her sister, Tiesha Johnson (“Tiesha”). Tiesha
testified that she visited with her sister that night on Hosmer Avenue. She also testified
that Johnson lived there with her two children. Johnson and Tiesha both testified that
Johnson told Kappenhagen to leave and, in response, Kappenhagen pulled a handgun out
and pointed it at both of them, threatening to shoot them. Eventually, Kappenhagen
agreed to leave if Johnson promised not to call the police. Kappenhagen left the
premises, and Johnson did not call the police. Johnson testified that she did not see
Kappenhagen again until the evening in question.
{¶14} On October 10, 2012, Johnson saw Kappenhagen at a convenience store not
far from her house around 6:00 in the evening. He apologized for his previous behavior
and asked to spend the night at Johnson’s place. Johnson testified that she told
Kappenhagen he could not come to the house and that she had nothing to say to him.
She also told Kappenhagen that the father of her baby, Cornell Stevenson, was waiting for
her at her place. She phoned her sister and asked her to give Kappenhagen a ride to the
west side. Johnson stated that her sister agreed to drive him because she was in the area
and headed in that direction. Johnson returned home.
{¶15} Tiesha testified that later that evening, approximately 9:00 p.m.,
Kappenhagen showed up at her apartment and asked for a ride back to the east side. She
stated that Kappenhagen asked for a ride to Johnson’s house, informing her that he and
Johnson had made up. She agreed, and when she approached her sister’s house, she
attempted to reach her sister by telephone to no avail. When she arrived at her sister’s
home, she advised Kappenhagen to wait in the car while she went to the house to speak
with Johnson. In speaking with Johnson, she learned that her sister did not want
Kappenhagen there. When Tiesha advised Kappenhagen that Johnson did not want him
back, he asked Tiesha to drop him off at a gas station on E. 71st Street and Harvard
Avenue. Tiesha testified that she dropped Kappenhagen off at approximately 10:00 p.m.
{¶16} Johnson testified that after she returned home from the convenience store,
she and Stevenson had drinks, smoked marijuana, and had sexual intercourse. When
they were finished having sex, she went to the kitchen table to pour herself a shot, and
while taking the shot, Stevenson, who was naked, began to walk towards the bathroom.
She stated that, as she was taking her shot and Stevenson was walking towards the
bathroom, the door opened and Kappenhagen came through the door, holding a handgun
in his left hand and a rifle in his right hand. She testified that the handgun was the same
gun Kappenhagen pointed at her the week before.
{¶17} Johnson stated that Kappenhagen forced Stevenson down the stairs and
eventually out of the house, while holding both weapons. As Kappenhagen yelled at
Stevenson to “get the f * * * out,” Johnson saw Kappenhagen pull the clip on one of the
guns and she assumed it was to show them that the gun was loaded. Kappenhagen
allowed Johnson to retrieve Stevenson’s clothes, and Kappenhagen threw them to
Stevenson as he waited on the stairs. While Kappenhagen was speaking with Stevenson,
Johnson ran to her bedroom and called 911 on her cell phone, whispering to the operator
because she did not want Kappenhagen, who was “not ten feet” away from her, to hear
her. After placing the call, Johnson kept the operator on the phone, and she placed her
phone in the waistband of her pants when Kappenhagen returned to the kitchen in an
attempt to conceal the phone from Kappenhagen.
{¶18} Johnson testified that after Kappenhagen returned to her kitchen, he initially
stood in the doorway with the guns and then sat at the table, holding the guns while
expressing his feelings for her and his desire to be with her. According to Johnson, he
first said that he killed Stevenson and he then changed his story, telling her that he was
going to “shoot [Stevenson] in the head in front of [Johnson].”
{¶19} Johnson testified that Kappenhagen sat at the table for approximately 15
minutes and that he was pointing a gun at her the entire time. She stated that during this
time, Kappenhagen said to her, “Oh, bitch, I told you I loved you and this is how you do
me?” She further stated that Kappenhagen was “really pissed, biting on his lips” and he
continued to tell her “how f * * *d up [she is]” for being with Stevenson. She testified
that she was “deathly afraid” and feared for her life and the lives of her children. She
believed that Kappenhagen wanted to kill her for choosing Stevenson over him, stating
that he had a “redness in his eyes,” and he was “enraged and upset” and “foaming [at the
mouth].” He also showed her that his gun was loaded, and she stated that she believed
“he planned on using it.”
{¶20} Johnson asked Kappenhagen if they could go outside to check on Stevenson.
According to Johnson, Kappenhagen agreed to go outside only to shoot Stevenson so
that he need not worry about him anymore. On the way down the stairs, Kappenhagen
remained two or three steps behind Johnson, holding the two guns behind her and telling
her to go downstairs.
{¶21} When they got outside the home, Johnson saw a police officer, who told
Kappenhagen to “put the guns down.” As she stood by the door, she heard a gunshot and
saw Kappenhagen run back inside the house. Johnson stated that she then ran to the side
of the house that was across from her house, where a police officer rushed her to a
waiting patrol car across the street. Kappenhagen then called Johnson on her cell phone.
Johnson told Kappenhagen to come out of the house, and he refused. She testified that
Kappenhagen said he thought the police would kill him and that perhaps he should put
one of the children over his head and another one over his chest when he came outside.
She was concerned for her children. Johnson later identified the pieces of the rifle that
Kappenhagen aimed at her, stating that the gun was not broken that evening.
{¶22} Stevenson testified that, on the night in question, he had come to Johnson’s
house to celebrate his birthday. He said that he and Johnson had discussions that evening
about the possibility of the two of them getting back together. After putting the children
down to sleep, they had dinner around 9:00 p.m. and then engaged in sexual intercourse.
Stevenson stated that when they had finished having sex, he began to walk through the
kitchen, naked, in order to access the bathroom; however, before he could reach the
bathroom, the back door opened and he saw a man, whom he later identified as
Kappenhagen, pointing a rifle at his face and holding a smaller handgun at his side. He
testified that the door had been locked and there was no key in that door at any time
during his visit.
{¶23} Stevenson further testified that while Kappenhagen was pointing the rifle at
him, he pointed the smaller gun as well. Kappenhagen repeatedly told Stevenson to
leave. Stevenson looked behind him at Johnson, wondering who Kappenhagen was and
what was happening. Kappenhagen eventually forced Stevenson out of the house, and
Stevenson knocked on the downstairs neighbor’s door, asking them to call the police.
Stevenson stated that he put his clothes on in the hallway landing and ran outside.
Stevenson went to the corner store and phoned the police himself. He learned that
officers had been dispatched to the house already. Stevenson later identified the rifle that
Kappenhagen had pointed at him, stating that the rifle was in one piece that evening in
October.
{¶24} Officer Neil Pesta testified that he and his partner, Brian Kellums,
responded to a call from dispatch regarding a male with two guns on Hosmer Avenue.
They arrived at the Hosmer Avenue home approximately 12:30 a.m. on October 11, 2012,
and learned that it was a hostage situation. Officer Pesta testified that he saw a black
female, whom he believed to be the victim, come out of the house. He saw a white male
follow directly behind the female. The male, whom he identified as Kappenhagen, was
holding a long brown rifle in his left hand and a silver handgun in his right hand. Officer
Pesta testified that when he saw the two guns in Kappenhagen’s hands, he yelled for
Kappenhagen to show his hands and then saw Kappenhagen raise his left hand up with
the rifle, toward the officer’s direction. Officer Pesta fired one round at Kappenhagen,
and Kappenhagen ran back inside the house. The officer stated that he yelled for the
female to come towards him. He stated that she informed him that her children were
inside the home. Officer Pesta identified the guns that Kappenhagen possessed that
evening. He further testified that the rifle appeared completely intact and fully
operational at the time of the incident.
{¶25} Sergeant Edward Lentz, Sergeant Larry Hughes, and SWAT Officer Ariel
Rojas all reported to the scene. They were advised that it was a hostage situation
because the suspect was in the house with the children. Sergeant Lentz testified that he
spoke with Kappenhagen when Kappenhagen called Johnson’s cell phone from the house.
He stated that Kappenhagen told him that he knew he was in trouble and that he was
concerned about going to prison. All three of the officers testified that Kappenhagen
remained in the home for approximately an hour and a half during police presence,
eventually coming out of the house and turning himself in.
{¶26} Sergeant Carl Hartman, an internal affairs investigator with the Cleveland
Police Department, testified that in the course of his investigation, he recovered two guns
that had been “shoved way down” inside a vent in the Hosmer Avenue home. He stated
that one of the weapons was a rifle that appeared to be broken or cut in half. He further
stated that it would not have been possible to put the entire rifle in the vent in one piece
and that he and the other officers had to tear out the duct work in the basement in order to
retrieve the rifle.
{¶27} Michael Gibbs, a detective in the Crime Scene Unit, identified the
photographs he took of the crime scene, which included photos of a damaged rifle and a
handgun that was wrapped in a blanket. He testified that the rifle was discovered in
several pieces. Detective Gibbs swabbed the weapons for DNA. The DNA report, to
which the defense stipulated, revealed Kappenhagen’s DNA on the recovered weapons.
{¶28} After the state rested, Kappenhagen testified on his own behalf. He
testified that he lived with Johnson at the Hosmer Avenue home and he paid for some of
the living expenses. He stated that he kept the guns in the attic; however, when he heard
arguing in the home, he retrieved the guns, fearing for the safety of the people in the
home. Kappenhagen denied pointing the guns at Stevenson or Johnson. He admitted,
however, to “rais[ing] the gun up” and telling Stevenson to leave. Kappenhagen stated
that after Stevenson left, he had a conversation with Johnson upstairs, though he denied
threatening her that evening. Finally, he testified that he “shoved” the guns down a vent
because he “didn’t want to do a lot of time,” and in the process, “the butt broke off.”
Assignments of Error
I. The trial court erred in denying appellant’s motion for acquittal as to the
charges when the state failed to present sufficient evidence to sustain a
conviction.
II. Appellant’s convictions are against the manifest weight of the evidence.
III. The trial court erred by ordering appellant to serve a consecutive
sentence without making the appropriate findings required by R.C. 2929.14
and H.B. 86.
Sufficiency of the Evidence
{¶29} In his first assignment of error, Kappenhagen contends that the state failed
to present sufficient evidence to sustain a conviction for the kidnapping of Robin Johnson
with the use of a firearm and tampering with the evidence.
{¶30} When assessing a challenge of sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “The relevant inquiry is whether, after viewing 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.” Id. A reviewing court is not
to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio
St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶31} The jury found Kappenhagen guilty of kidnapping Robin Johnson in
violation of R.C. 2905.01(A)(3). That section provides that “[n]o 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 * * * in order [t]o terrorize, or to inflict
serious physical harm on the victim or another.” Id.
{¶32} This court has previously defined “‘restrain the liberty of the other person’”
as “‘limit[ing] one’s freedom of movement in any fashion for any period of time.’” State
v. Woodson, 8th Dist. Cuyahoga No. 95852, 2011-Ohio-2796, ¶ 13, quoting State v.
Wingfield, 8th Dist. Cuyahoga No. 69229, 1996 Ohio App. LEXIS 867, * 6 (Mar. 7,
1996); see also State v. Walker, 9th Dist. Medina No. 2750-M, 1998 Ohio App. LEXIS
4067, * 5 (Sept. 2, 1998) (restraint of liberty involves placing the victim in the
offender’s power and beyond immediate help, even though temporarily, and does not
require prolonged detainment).
{¶33} Regarding additional elements of kidnapping under R.C. 2905.01(A)(3), this
court has previously held that “terrorize” is a common word and means “to fill with terror
or anxiety.” State v. McDougler, 8th Dist. Cuyahoga No. 86152, 2006-Ohio-100, ¶ 16.
Additionally, the offense of kidnapping does not require that the offender actually cause
any injury to the victim. See State v. Lavelle, 5th Dist. Stark No. 07 CA 130,
2008-Ohio-3119.
{¶34} The jury also found Kappenhagen guilty of the one-year and three-year
firearm specifications. Under R.C. 2941.141(A), the sentencing court must impose a
one-year mandatory prison term upon the offender “if the offender had a firearm on or
about the offender’s person or under the offender’s control while committing the
offense.” R.C. 2941.145(A) provides for a mandatory three-year prison term if the
offender had a firearm on his person or under his control while committing the offense
“and displayed the firearm, brandished the firearm, indicated that [he] possessed the
firearm, or used it to facilitate the offense.”
{¶35} Here, viewing the evidence in a light most favorable to the state, we find
that the state provided sufficient evidence of kidnapping with the accompanying firearm
specifications. First, Johnson testified that Kappenhagen initially stood in the doorway
holding two guns and then pointed a gun at her for at least 15 minutes while he sat at her
kitchen table and berated her. During this time, Kappenhagen was enraged and appeared
to be “foaming [at the mouth],” expressing anger towards Johnson for the way he
believed Johnson treated him. Any jury could have found, under these circumstances,
that Kappenhagen restrained Johnson’s liberty.
{¶36} Second, a reasonable jury could have found that Kappenhagen’s actions
demonstrated an intent to terrorize or cause physical harm. Johnson testified that
Kappenhagen initially told her that he killed Stevenson but later told her that he was
going to kill Stevenson in front of her, “shoot[ing] him in the head,” so that he would not
have to worry about Stevenson anymore. She stated that he showed her the gun was
loaded and she believed Kappenhagen wanted to kill her for choosing another man. We
therefore conclude that the above evidence, if believed, would convince the average mind
of Kappenhagen’s guilt of kidnapping beyond a reasonable doubt.
{¶37} We also find that this evidence was sufficient to show that Kappenhagen
had on his person, or within his control, two firearms. Additionally, the evidence, if
believed, was sufficient to demonstrate that Kappenhagen used a firearm to facilitate the
kidnapping of Robin Johnson.
{¶38} Finally, the jury found Kappenhagen guilty of tampering with evidence. R.
C. 2921.12(A)(1) provides as follows:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall * * * [a]lter,
destroy, conceal, or remove any record, document, or thing, with purpose to
impair its value or availability as evidence in such proceeding or
investigation.
{¶39} We find that the evidence presented at trial is sufficient to show that
Kappenhagen tampered with evidence. Sergeant Hartman testified that he recovered two
guns that had been “shoved way down” inside a vent in the Hosmer Avenue home and
that one of the weapons was a rifle that appeared to be broken or cut in half. He further
testified that it would not have been possible to put the entire rifle in the vent in one
piece. Detective Gibbs testified that the rifle was discovered in several pieces. Both
Johnson and Stevenson identified the rifle as the gun Kappenhagen pointed at them, and
they testified that the rifle was in one piece when they last saw it. Sergeant Lentz
testified that Kappenhagen told him that he knew he was in trouble and that he was
concerned about going to prison, and Kappenhagen admitted that he “shoved” the guns
down a vent because he “didn’t want to do a lot of time.” This evidence, if believed, was
sufficient to show that Kappenhagen attempted to alter, destroy, or conceal his two
weapons in order to prevent the use of the weapons as evidence against him.
{¶40} Viewing the above evidence in a light most favorable to the prosecution, we
find that any rational trier of fact could find the essential elements of kidnapping with the
accompanying firearm specifications and tampering with evidence beyond a reasonable
doubt.
{¶41} Kappenhagen’s first assignment of error is overruled.
Manifest Weight of the Evidence
{¶42} In his second assignment of error, Kappenhagen contends that his
convictions are against the manifest weight of the evidence.
{¶43} While the test for sufficiency of the evidence requires a determination
whether the state has met its burden of production at trial, a manifest weight challenge
questions whether the state has met its burden of persuasion. Thompkins, 78 Ohio St. 3d
at 390, 678 N.E.2d 541. Also unlike a challenge to the sufficiency of the evidence, a
manifest weight challenge raises a factual issue.
“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.”
Id. at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶44} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. When examining witness credibility, “the
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St. 3d 120, 123, 489 N.E.2d 277 (1986). A
factfinder is free to believe all, some, or none of the testimony of each witness appearing
before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
{¶45} Kappenhagen argues that there is no evidence he knowingly committed any
crime against Johnson or that he intended to cause any harm. We disagree.
{¶46} As previously stated, kidnapping in violation of R.C. 2905.01(A)(3)
prohibits any person, by force, threat, or deception, from restraining the liberty of another
in order to terrorize or inflict serious physical harm on another. At trial, Johnson
testified that Kappenhagen held a gun in one hand and pointed a second gun at her for at
least 15 minutes while he sat at her kitchen table and berated her. She also testified that
he was enraged and appeared to be “foaming [at the mouth],” expressing anger towards
Johnson for the way he believed Johnson treated him, and she was “deathly afraid” and
feared for her life and the lives of her children. Johnson further testified that during this
time, Kappenhagen told her that he killed Stevenson, only later changing his story to say
that he was going to “shoot [Stevenson] in the head in front of [her].” Finally, Johnson
testified that Kappenhagen showed her that the gun was loaded and she believed he
wanted to kill her for choosing Stevenson over him.
{¶47} The state also presented the testimony of several police officers on the
scene. Sergeant Lentz testified that Kappenhagen told him that he knew he was in
trouble and that he was concerned about going to prison. Sergeant Hartman and
Detective Gibbs testified that a rifle was discovered in several pieces in a vent inside the
home. Sergeant Hartman stated that it would have been impossible to put the entire rifle
in the vent in one piece. Both Johnson and Stevenson identified the recovered rifle as
the gun Kappenhagen pointed at them, and they testified that the rifle was in one piece
when Kappenhagen pointed it at them. Furthermore, Kappenhagen admitted that he
“shoved” the guns down a vent because he “didn’t want to do a lot of time.” He
testified, however, that he did not threaten Johnson.
{¶48} Based upon the record, we are unable to conclude that this is the exceptional
case in which the evidence weighs heavily against the conviction. The state presented
evidence that Kappenhagen restrained Johnson’s liberty with the purpose of terrorizing or
inflicting serious physical harm and that he attempted to conceal or destroy evidence that
may have been used against him. While Kappenhagen testified at trial that he did not
threaten Johnson, the jury found the victim’s testimony credible. As such, we cannot say
that the jury clearly lost its way, thus creating such a manifest miscarriage of justice that
the conviction must be reversed.
{¶49} Kappenhagen’s second assignment of error is overruled.
Consecutive Sentence
{¶50} In his third assignment of error, Kappenhagen claims that the trial court did
not make the appropriate consecutive sentence findings. In support of his argument,
Kappenhagen “acknowledge[s] that the trial court made findings,” yet he states that he
includes this assignment of error “to preserve any future potential appellate and/or other
remedies.”
{¶51} Here, Kappenhagen was convicted of three of the nine counts contained in
the indictment: Count 3, kidnapping (and both one-year and three-year firearm
specifications); Count 8, tampering with evidence (and one-year firearm specification);
and Count 9, having weapons while under disability. The trial court sentenced him to
eight years on the kidnapping, 36 months on the tampering charge, and 36 months on the
weapons charge, ordering the sentences to be run concurrently. The court, however,
sentenced Kappenhagen to an additional eight years for the repeat violent offender
specification and three years for the firearm specification, ordering these sentences to be
served consecutively to each other and consecutive to the base charge on Count 3.1
The court merged the one-year and three-year firearm specifications contained in Count 3.
1
{¶52} Generally speaking, where multiple prison terms are imposed on an offender
for convictions of multiple offenses, R.C. 2929.14(C)(4) provides that the court may
require the offender to serve the prison terms consecutively if the court makes findings
that “the consecutive service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public,”
and one of the factors enumerated in R.C. 2929.14(C)(4)(a)-(c) is present, including the
offender’s history of criminal conduct.
{¶53} Where a defendant is convicted of, or pleads guilty to, a repeat violent
offender specification, under R.C. 2929.14(B)(2)(a), the trial court may impose an
additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten
years for the repeat violent offender specification, if all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a specification of the
type described in section 2941.149 of the Revised Code that the offender is
a repeat violent offender.
(ii) The offense of which the offender currently is convicted or to which the
offender currently pleads guilty is * * * any felony of the second degree that
is an offense of violence and the trier of fact finds that the offense involved
an attempt to cause or a threat to cause serious physical harm to a person or
resulted in serious physical harm to a person.
(iii) The court imposes the longest prison term for the offense that is not life
imprisonment without parole.
(iv) The court finds that the prison terms imposed * * * are inadequate to
punish the offender and protect the public from future crime, because the
applicable factors under section 2929.12 of the Revised Code indicating a
greater likelihood of recidivism outweigh the applicable factors under that
section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed * * * are demeaning to the
seriousness of the offense, because one or more of the factors under section
2929.12 of the Revised Code indicating that the offender’s conduct is more
serious than conduct normally constituting the offense are present, and they
outweigh the applicable factors under that section indicating that the
offender’s conduct is less serious than conduct normally constituting the
offense.
{¶54} The statute mandates that when imposing a sentence under this section, the
sentencing court must state its findings, explaining the imposed sentence. R.C.
2929.14(B)(2)(e). The statute further mandates that the offender shall serve the
additional prison sentence imposed under this section consecutively to and prior to the
prison term imposed for the underlying offense. R.C. 2929.14(B)(2)(d).
{¶55} With respect to the imposition of consecutive sentences for mandatory
prison terms associated with firearms specifications, R.C. 2929.14(C)(1) provides as
follows:
Subject to division (C)(1)(b) of this section, if a mandatory prison
term is imposed upon an offender pursuant to division (B)(1)(a) of this
section for having a firearm on or about the offender’s person or under the
offender’s control while committing a felony, if a mandatory prison term is
imposed upon an offender pursuant to division (B)(1)(c) of this section for
committing a felony specified in that division by discharging a firearm from
a motor vehicle, or if both types of mandatory prison terms are imposed, the
offender shall serve any mandatory prison term imposed under either
division consecutively to any other mandatory prison term imposed under
either division or under division (B)(1)(d) of this section, consecutively to
and prior to any prison term imposed for the underlying felony pursuant to
division (A), (B)(2), or (B)(3) of this section or any other section of the
Revised Code, and consecutively to any other prison term or mandatory
prison term previously or subsequently imposed upon the offender.
R.C. 2929.14(C)(1)(a); State v. Parker, 8th Dist. Cuyahoga No. 98272, 2013-Ohio-2898,
¶ 11. As such, the mandatory three-year firearm specification must be served
consecutively to and prior to any prison term imposed for the underlying felony. Id.
{¶56} Here, Kappenhagen was convicted of kidnapping (where the victim was
released in a safe place unharmed), a second-degree felony that is an offense of violence,
and its accompanying repeat violent offender specification. At sentencing, the trial court
sentenced Kappenhagen to the maximum term of imprisonment on the kidnapping charge.
See R.C. 2929.14(A)(2)(stating the maximum sentence for a single, second-degree
felony is eight years incarceration). Thus, the criteria outlined in R.C.
2929.14(B)(2)(a)(i), (ii), and (iii) have been met.
{¶57} Additionally, the trial court made the findings necessitated by
R.C. 2929.14(B)(2)(a)(iv) and (v). In doing so, the court stated as follows:
[T]his all indicates to the court that a severe sentence is necessary, that a
single sentence would not adequately protect our community, nor punish
this defendant, and that the following sentence I’m going to impose is not
disproportionate and I’m going to find that the harm is so great or unusual
that a single term would not adequately reflect the seriousness of his
conduct and that his criminal history shows that consecutive terms are
needed to protect the public.
And for all the previously stated reasons, I am going to impose consecutive
[sentences] based on the repeat violent offender specifications that the court
found that he is a repeat violent offender and that the only way to protect
our community is to separate him from the community.
{¶58} Prior to making its findings, the court stated that it considered the
defendant’s statement to the court, the presentence investigation report, the statutory
requirements, the principles and purposes of felony sentencing, and the appropriate
recidivism and seriousness factors. The court also considered the sanity evaluation
prepared in January 2013. Based upon his review of the report, the court observed that
Kappenhagen “has issues with authority,” he’s a violent person, using his intelligence and
violence to victimize others, and he “does things his own way,” despite the reality of the
situation. The court noted that the evaluation failed to diagnose Kappenhagen with any
“real mental health” issues and that Kappenhagen “basically lied in prison about
depression and suicidal thoughts” in order to get drugs in prison. The court concluded
that Kappenhagen had, once again, manipulated the system, and his behavior exemplifies
“a pernicious cycle of this defendant’s total disregard for society rules.”
{¶59} The trial court then considered Kappenhagen’s extensive criminal history,
which included the following: assault and stealing as a juvenile in 1999; unauthorized
use of a motor vehicle in 2001; aggravated robbery with a firearm specification in 2003;
assault of an institutional guard, harassment, and obstructing official business; attempted
receiving stolen property of a motor vehicle and failure to comply with the order of a
police officer in 2007; receiving stolen property in 2009, immediately upon being
released from prison; drug possession; obstructing official business and contempt of court
in 2011; receiving stolen property in 2011; and misuse of credit cards and receiving stolen
property in 2012. The court noted that Kappenhagen previously violated his community
control three times and all of the past efforts to rehabilitate Kappenhagen and control his
anger have failed.
{¶60} In light of the above, we find the trial court properly imposed a consecutive
sentence. The court satisfied all of the repeat violent offender criteria mandated by
statute and stated its findings accordingly. As a result, the statute mandated that the
additional prison sentence imposed under R.C. 2929.14(B)(2)(a) be imposed
consecutively to and prior to the prison term imposed for the underlying offense. In
addition, the court was statutorily mandated to impose the sentence for the firearm
specification consecutively to and prior to any prison term imposed for the underlying
felony. See R.C. 2929.14(C)(1)(a).
{¶61} Kappenhagen’s third assignment of error is overruled.
{¶62} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
______________________________________________
TIM McCORMACK, JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR