[Cite as State v. Seitz, 2014-Ohio-2463.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 17-12-11

        v.

JAMIE J. SEITZ,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No11CR000011

                                       Judgment Affirmed

                                Date of Decision: June 9, 2014




APPEARANCES:

        Jeremy M. Tomb for Appellant

        Jeffrey J. Beigel for Appellee
Case No. 17-12-11


SHAW, J.

       {¶1} Defendant-appellant Jamie Seitz (“Seitz”) appeals the March 16,

2012, judgment of the Shelby County Common Pleas Court sentencing Seitz to

five years in prison following Seitz’s jury trial convictions for Kidnapping in

violation of R.C. 2905.01(A)(2), a felony of the second degree, and Assault in

violation of R.C. 2903.13(A), a first degree misdemeanor.

       {¶2} The facts relevant to this appeal are as follows. On January 6, 2011,

the Shelby County Grand Jury indicted Seitz on the following counts:              1)

Attempted Murder in violation of R.C. 2923.02 and 2903.02(A), a felony of the

first degree; 2) Kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first

degree; 3) Kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first

degree; 4) Kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first

degree; 5) Abduction in violation of R.C. 2905.02(A)(2), a felony of the third

degree; and 6) Felonious Assault in violation of R.C. 2903.11(A)(1), a felony of

the second degree. (Doc. 1).

       {¶3} The Bill of Particulars filed on May 2, 2011, specified that the Count 2

Kidnapping charge was based upon the following.

       As it relates to Count II of the Indictment, the Defendant is
       charged with Kidnapping, a violation of [R.C. 2905.01(A)(2)], a
       felony of the first degree. The evidence will prove beyond a
       reasonable doubt that the Defendant did by force, threat or
       deception, by any means remove another from a place where the
       other person is found or restrained the liberty of a person to

                                         -2-
Case No. 17-12-11


      facilitate the commission of any felony or flight thereafter in that
      he did remove Scarlet E. Ashworth from Apartment 65 at 500
      North Vandemark Road, Sidney, Shelby County, Ohio by force,
      threat or deception after he attempted to murder her and
      committed felonious assault upon her by forcing her into a
      Hummer and transporting her from Sidney to his home in
      Piqua, Ohio.

(Doc. 102).

      {¶4} On May 17, 2011, a jury trial was held. At the start of the trial, the

State dismissed Count V, Abduction, without prejudice.            The jury returned

verdicts of guilty on all remaining counts. (Doc. 248).

      {¶5} On June 2, 2011, Seitz filed a motion for a judgment of acquittal or, in

the alternative, a motion for a new trial. (Doc. 261). The motion for a new trial

was based upon allegations of jury misconduct. On July 26, 2011, the trial court

determined that there was juror misconduct and set a hearing to determine whether

prejudice resulted. (Doc. 271). The evidentiary hearing was held on August 29,

2011. Multiple jurors testified that they considered the news reports regarding

other charges against the defendant when deliberating and that those other charges

influenced their decisions. The trial court then found the juror misconduct to be

prejudicial and granted the motion for a new trial. (Doc. 308).

      {¶6} A second jury trial was commenced on February 14, 2012. At trial,

the State presented evidence that Seitz owned a bar called Broad Street Grill.

Seitz employed the victim, Scarlet Ashworth, as a bartender. (Tr. at 190). On


                                        -3-
Case No. 17-12-11


December 16, 2010, Seitz and Ashworth went to a catering event and afterward

went to a few bars where they became intoxicated.                (Tr. at 192-193).

Subsequently, Seitz, who was married, and Ashworth went to an apartment that

was rented for them to spend time together for their affair. (Tr. at 695-700).

       {¶7} Ashworth testified that while at the apartment that evening, Seitz

became angry. (Tr. at 195). Seitz testified he became upset because Ashworth

was receiving text messages from other men. (Tr. at 703). Ashworth testified that

once Seitz became angry, he did not allow her to leave the apartment. (Tr. at 195).

Ashworth testified that Seitz broke her phone and then held her against her will for

hours, repeatedly beating, choking, hitting, and kicking her. (Tr. at 195-216).

Ashworth also testified that Seitz choked her until she was unconscious and

threatened to kill her. (Tr. at 196-197). Ashworth testified that she tried to get

away multiple times and tried to shout for help but Seitz stopped her, putting his

hand in her mouth to prevent her from screaming. (Tr. at 196).

       {¶8} Throughout the evening/early morning hours, Seitz sent various text

messages to Erin Dearth stating that he had “beat [Ashworth] bad,” that he

“need[ed] to kill [Ashworth] and hide the body,” that Ashworth was “a whore and

[he] beat her ass,” that “[Ashworth] is gonna die tonight and so am I,” that Seitz

would “send [Erin] a pic after [Ashworth] is dead” and that Seitz needed “to hide

so I got to run.” (Tr. at 420-424). Seitz sent a message to Erin that said “I will


                                         -4-
Case No. 17-12-11


stay with [Ashworth] till she is gone then I am going information [sic] some cash

and then I am laving [sic].” Seitz later instructed Erin that the text messages he

sent to her should be erased. (Tr. at 426).

         {¶9} According to Ashworth, Seitz continued beating her into the morning

of December 17, whereupon Seitz took Ashworth against her will to his home in

Piqua.     (Tr. at 203-205).     Seitz’s wife cared for Ashworth’s injuries and

subsequently took Ashworth to get her car so Ashworth could go home. (Tr. at

208-212).

         {¶10} Ashworth later went to the hospital to have her injuries looked at. As

a result of the incident, Ashworth testified that she missed work, that she had black

eyes for about three weeks, and that she was dizzy for the first month after the

incident. (Tr. at 215-216).

         {¶11} Seitz offered contrary explanations for the evening/early morning in

question. According to Seitz, who took the stand, Ashworth struck him first with

a porcelain toilet tank lid. (Tr. at 706, 709). Seitz testified that he and Ashworth

then struck each other, but Seitz claimed he struck in self-defense. (Tr. at 710).

Seitz testified that he was not being serious in the text messages he sent to Erin

Dearth that evening. (Tr. at 718-719). Seitz also testified that Ashworth came to

and left the apartment freely and that he did not restrain her or force her to go

anywhere with him. (Tr. at 726-728, 748).


                                          -5-
Case No. 17-12-11


      {¶12} On February 17, 2012, the jury returned its verdicts. The jury found

Seitz not guilty of Count I – Attempted Murder, Count III – Kidnapping, Count IV

– Kidnapping, and Count V – Felonious Assault. However, the jury found Seitz

guilty of Count II – Kidnapping, and Guilty of the lesser included offense of

Assault for Count V.        (Doc. 536-540).     The Assault conviction was a

misdemeanor.

      {¶13} On February 24, 2012, Seitz filed a motion for acquittal on Count II.

(Doc. 547). The trial court overruled the motion on March 9, 2012. (Doc. 554).

      {¶14} On March 12, 2012, a sentencing hearing was held. The trial court

ultimately sentenced Seitz to serve five years in prison for the Kidnapping

conviction and 180 days for the Assault conviction. (Doc. 560). The sentences

were ordered to be served concurrently. (Doc. 560). An entry reflecting this was

filed March 16, 2012. (Id.) It is from this judgment that Seitz appeals asserting

the following assignment of error for our review.

                   ASSIGNMENT OF ERROR
      THE JURY’S VERDICT WAS INCONSISTENT; AN
      UNDERLYING      MISDEMEANOR    IS  LEGALLY
      INSUFFICIENT   TO   SUPPORT  THE  COUNT  II
      KIDNAPPING CONVICTION WHICH REQUIRES A
      FELONY, COUNT II SHOULD BE VACATAED AS A
      MATTER OF LAW AND BARRED FROM RETRIAL BY
      DOUBLE JEOPARDY.




                                        -6-
Case No. 17-12-11


      {¶15} In Seitz’s assignment of error, he argues that the jury’s verdicts were

inconsistent. Specifically, Seitz contends that the Kidnapping offense he was

convicted of required the completion and conviction of an underlying felony as an

element of the crime and that since he was convicted only of the lesser-included

offense of (misdemeanor) Assault, he could not be convicted of Kidnapping. We

disagree.

      {¶16} In this case, Seitz was convicted of Kidnapping in violation of R.C.

2905.01(A)(2), which reads,

      (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:

      ***

      (2) To facilitate the commission of any felony or flight thereafter

      {¶17} In State v. Matthieu, 3d Dist. Nos. 10-02-04, 10-02-05, 2003-Ohio-

3430, we held,

      R.C. 2905.01 defines the offense of kidnapping as the restraint or
      removal of the person for certain specified purposes and makes
      the intent at the time of the abduction the gravamen of the offense.
      State v. Dench, 111 Ohio App. 39, 41-42 (1959), interpreting
      former R.C. 2901.31, abduction for immoral purposes which is
      analogous to R.C. 2905.01. See, also, State v. Stefanski, (Mar. 29,
      1999), Wyandot App. No. 9-98-63, dismissed, appeal not allowed
      in 87 Ohio St.3d 1450 (1999); State v. Moore, (May 14, 1992),



                                       -7-
Case No. 17-12-11


           Cuyahoga App. No. 60334.1 “The statute punishes certain
           removal or restraint done with a certain purpose and the eventual
           success or failure of the goal is irrelevant.” Moore, supra. See
           also, Stefanski, supra. Finding Matthieu not guilty of rape,
           abduction, or sexual battery is not in any sense a finding that
           there was no intent or purpose to commit those crimes at the time
           of the abduction. Dench, 11 Ohio App. At 42; Stefanski, supra. A
           review of the trial transcript reveals evidence that, if viewed in a
           light most favorable to the prosecution, could lead a rational
           juror to reasonably conclude that Matthieu employed deception
           to remove the victim from the place where she was found for the
           purpose of engaging in sexual activity against her will. Id.

(Emphasis Added.) Matthieu at ¶ 17.

           {¶18} Our holding in Matthieu clearly states that the statute punishes

restraint or removal with a certain purpose. The success or failure of the felony is

irrelevant in this instance. That the jury ultimately convicted Seitz of simple

Assault instead of Felonious Assault in this case does not prevent the jury from

finding that Seitz removed or restrained the victim with the purpose to facilitate

the commission of a felony, and that is all that is required under R.C.

2905.01(A)(2) to commit a Kidnapping.

           {¶19} Our finding that the completion of the underlying felony in this case

is irrelevant is consistent with our prior holding in Matthieu, and it is further

consistent with other Ohio Appellate Districts on this issue. In State v. Lowe, 8th

Dist. No. 99176, 2013-Ohio-3913, the Eighth District Court of Appeals recently

addressed the exact same language of the indictment charged in the case before us

1
    In the Matthieu opinion, the citations were placed in footnotes.

                                                       -8-
Case No. 17-12-11


and the identical issue before us regarding whether a jury’s verdict was

inconsistent when the jury found the defendant guilty of Kidnapping in violation

of R.C. 2905.01(A)(2) and not guilty of Felonious Assault. In Lowe, the Eighth

District held,

       the jury found the evidence insufficient for a conviction of
       felonious assault involving the use of a broken bottle as a deadly
       weapon, but the ultimate success of the state meeting all the
       elements sufficient to convince the jury that appellant committed
       a felonious assault has no bearing on his culpability for
       kidnapping. The jury found that the restraint of Brittany by
       force as appellant drove down the road with her clinging to the
       car constituted kidnapping. The not guilty finding on the count
       of felonious assault does not impact appellant's legal culpability
       for kidnapping because “the individual counts of an indictment
       containing more than one count are not interdependent, and an
       inconsistency in a verdict does not arise out of inconsistent
       responses to different counts but only arises out of inconsistent
       responses to the same count.”

(Citations omitted.) Lowe at ¶ 21.

       {¶20} Similar to the Eighth District’s decision in Lowe, and our holding in

Matthieu, other Ohio Appellate Districts and the federal court for the Southern

District of Ohio have found that “the kidnapping statute punishes certain removal

or restraint done with a certain purpose, and the eventual success or failure of the

goal is irrelevant.” State v. Cope, 12th Dist. No. CA2009-11-285, 2010-Ohio-

6430, ¶ 68 (citing Matthieu favorably); State v. Smith, 9th Dist. No. 23468, 2007-

Ohio-5524, ¶ 41 (citing Matthieu favorably); Carver v. Warden, Marion

Correctional Inst., S.D.Ohio No. 3:10-CV-38, 2011 WL 4442661 (Sept. 22, 2011)

                                        -9-
Case No. 17-12-11


(citing Mattieu favorably); State v. Price, 8th Dist. No. 99058, 2013-Ohio-3912, ¶

28 (another case out of the Eighth District following the logic in Smith, supra, and

Matthieu).

           {¶21} Notably Matthieu dealt with Kidnapping charges pursuant to both

R.C. 2905.01(A)(2) and (A)(4) while the case before us involves only section

(A)(2). However, the fact that Matthieu—and also Cope, Carver, and Price—

reached the same conclusions under the (A)(4) language, which requires a purpose

to actually “engage in” the underlying felony as opposed to the (A)(2) language of

the case before us which requires only a purpose to “facilitate” the underlying

felony, makes these decisions all the more persuasive to the present case.2

           {¶22} All of these cases are entirely compatible with the case authority

regarding the consistency of verdicts in general. “‘Consistency between verdicts

on several counts of an indictment is unnecessary where the defendant is convicted

on one or some counts and acquitted on others; the conviction generally will be

upheld irrespective of its rational incompatibility with the acquittal.’” State v.

Smith, 3d Dist. No. 13-10-24, 2011-Ohio-997, quoting State v. Trewartha, No.

04AP-963, 10th Dist., 2005-Ohio-5697, ¶ 15, citing State v. Adams, 53 Ohio St.2d

223 (1978), vacated in part on other grounds in Adams v. Ohio, 439 U.S. 811, 99

S.Ct. 69 (1978). Every count of a multiple-count indictment is considered to be



2
    Lowe and Smith still deal with the R.C. 2905.01(A)(2), the statutory subsection at issue before us.

                                                      -10-
Case No. 17-12-11


distinct and independent of all the other counts; therefore, inconsistent verdicts on

different counts do not justify overturning a verdict of guilt. (Emphasis Added.)

Id., citing State v. Hicks, 43 Ohio St.3d 72, 78, (1989); State v. Brown, 12 Ohio

St.3d 147 (1984), syllabus; State v. Washington, 126 Ohio App.3d 264, 276 (2nd

Dist.1998). As the Ohio Supreme Court has stated, “the sanctity of the jury

verdict should be preserved and could not be upset by speculation or inquiry into

such matters to resolve the inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440,

444 (1997).

       {¶23} Based on our prior case law and the persuasive authority of the other

appellate courts set forth above, we do not find that the jury’s verdicts were

inconsistent in this case. Accordingly, Seitz’s assignment of error is overruled.

       {¶24} For the foregoing reasons Seitz’s assignment of error is overruled

and the judgment of the Shelby County Common Pleas Court is affirmed.

                                                                Judgment Affirmed

ROGERS, J., concurs.

/jlr



WILLAMOWSKI, P.J., Dissenting.

       {¶25} I dissent from the majority opinion in that I would find that without

the underlying felony, the defendant cannot be guilty of felony kidnapping. The


                                        -11-
Case No. 17-12-11


sole question for review in this appeal is whether, as a matter of law, the

conviction for kidnapping while fleeing from the commission of a specified felony

may stand when the defendant is acquitted of the underlying specified felony.

Based upon the particular facts of this case, I would answer this question in the

negative. The basis of the charge in this case is that after committing the felonies

of attempted murder or felonious assault, Seitz forced the victim into his car and

took her to his home.    Bill of Particulars, 2-3. During the jury instructions, the

trial court specifically instructed the jury that the underlying felony in this count

was felonious assault. Tr. 862.

       {¶26} The Ohio Supreme Court in State v. Liberatore, 4 Ohio St.3d 13

(1983), held that “[b]y definition, felony murder requires proof of the underlying

felony in order to sustain a conviction under R.C. 2903.01(B).” Id. at 15. The

definition of felony murder is that “no person shall purposely cause the death of

another   * * * while committing or attempting to commit or while fleeing

immediately after committing or attempting to commit kidnapping, rape,

aggravated arson, arson, aggravated robbery, robbery, aggravated burglary,

burglary, terrorism, or escape.”      R.C. 2903.01(B) (emphasis added).          The

definition of felony kidnapping is similar.      “No person, by force, threat, or

deception * * * shall remove another from the place where the other person is

found * * * for [the purpose of facilitating] the commission of any felony or flight


                                        -12-
Case No. 17-12-11


thereafter[.]” R.C. 2905.01(A)(2) (emphasis added). To convict a defendant of

kidnapping in violation of R.C. 2905.01(A)(2), the kidnapping must either be done

to facilitate the felony or to facilitate the flight after the felony. While a felony

kidnapping charge could survive without the commission of a felony if the

kidnapping was done to facilitate the commission of a felony, but the offender was

unable to complete it for whatever reason, the flight after the commission of a

felony, by definition, requires that there must have been a felony from which one

has fled. See R.C. 2905.01(A)(2).

       {¶27} In this case, the State argued that Seitz committed felonious assault

upon the victim and then removed her from the location after the felony was

completed. The State did not argue that the kidnapping was done to facilitate the

commission of any felony. However, the jury disagreed with the State and found

that Seitz had not committed felonious assault. The jury also found that Seitz had

not committed any felony other than the felony kidnapping itself. The only other

conviction was for a misdemeanor assault upon the victim. Thus, the jury must

have concluded that Seitz had kidnapped the victim after committing a

misdemeanor. By operation of law, this does not support a conviction under the

plain language of the statute in this case, under these facts.

       {¶28} The State argues that the inconsistency of the verdicts does not

matter because they were separate counts under the indictment. In support of this


                                         -13-
Case No. 17-12-11


argument, the State refers to this court’s prior opinion in State v. Matthieu, 3d

Dist. Nos. 10-02-04, 10-02-05, 2003-Ohio-3430.        In Matthieu, the defendant

approached a seventeen year old girl as she was walking and asked for directions

to Wal-Mart. The victim gave him directions, but the defendant claimed he did

not understand and asked her to get in the car to show him. The victim agreed and

they drove away. After driving around for a while, the defendant stopped the car

and engaged in sexual activity with the victim. The defendant was charged with

one count of kidnapping in violation of R.C. 2905.01(A)(2),(4), one count of

abduction, one count of rape, and one count of sexual battery. After a two day

trial, the jury returned verdicts of not guilty on all charges except for the

kidnapping charge. The jury found the defendant guilty of kidnapping. The

defendant appealed claiming that since there was no underlying felony, he could

not be found guilty of felony kidnapping. Based upon the facts of that case, this

court sustained the conviction finding that the counts in that case were not

interdependent.   The jury could have clearly concluded that Matthieu had

kidnapped the victim to facilitate a planned rape.      In addition to the felony

kidnapping, Matthieu was also charged with taking the victim with the intent to

engage in sexual activity against the victim’s will. This court specifically held in

Matthieu that it was the intent of the offender at the time of the abduction which

forms the gravamen of the offense. Id. at ¶17. Based upon the facts in evidence in


                                       -14-
Case No. 17-12-11


the Matthieu case, this court held there was sufficient evidence to find that the

defendant had the requisite intent to kidnap the victim in violation of R.C.

2905.01(A)(4) to support the conviction.

       {¶29} Unlike the facts of Matthieu, the sole charge of kidnapping in this

case is that it was done to facilitate flight from the felony. The evidence does not

show and no one argues that the charge of kidnapping for which Seitz was

convicted was done to facilitate the commission of a felony. Instead, it was

argued that it occurred after the felony occurred and that Seitz was fleeing

therefrom. There is no evidence of an intent to commit a new felony. There was

also no evidence that the kidnapping was to facilitate his flight from a felony.

Instead, all of the evidence shows that Seitz’s intent at that time was to take the

victim to his wife so that she could help the victim. She wasn’t a hostage and he

was not attempting to keep her quiet. Once they reached the house, the victim

testified that the wife helped her with her injuries and returned her to her car.

Seitz did nothing to stop them. Seitz also did nothing to alter the crime scene,

which was exactly the same when the victim returned to it to retrieve her items.

The victim also testified that the wife had assisted her several times after the

incident, even taking her to get a new cell phone to replace the one that Seitz had

broken. Without some evidence that Seitz kidnapped her to either facilitate the

commission of a felony, which was not argued in this case, or that he had


                                       -15-
Case No. 17-12-11


committed a felony from which he was fleeing, there is insufficient evidence to

support a felony kidnapping charge in this case. Since the plain language of the

statute setting forth the flight from a felony element of the kidnapping charge

requires a felony be committed and no felony was determined to have been

committed here, Seitz could not be found guilty of felony kidnapping under the

specific facts of this case. R.C. 2905.01(A)(2).

       {¶30} The majority argues that the jury could have found the earlier actions

of Seitz were the underlying felony. However, under the specific facts of this

case, that argument is necessarily illogical. The jury was specifically instructed

that the underlying felony to convict the defendant of this kidnapping charge was

the felonious assault of which the jury found Seitz not guilty. The earlier actions

formed the basis of the other kidnapping charges of which the jury also found

Seitz not guilty. The argument that the jury might have based its verdicts upon

those actions does not work when those actions were the specific basis for the

other charges and the jury also acquitted Seitz of those charges. Again, the State

argued that the removal from the scene after the felonious assault was the basis of

this specific charge. The jury was instructed that the basis of this kidnapping

charge was the commission of the felonious assault. The jury found there was no

felony.   Without the underlying felony, a defendant cannot flee from the

commission of a felony. Thus, as a matter of law, I would find that the defendant


                                        -16-
Case No. 17-12-11


did not commit felony kidnapping in this case under the facts proven and argued at

trial. For this reason, I respectfully dissent.




                                          -17-
