        [Cite as State v. Armstrong, 2011-Ohio-6265.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :      APPEAL NO. C-100509
                                                        TRIAL NO. B-0905357
    Plaintiff-Appellee,                          :
                                                        O P I N I O N.
  vs.                                            :

TIMOTHY ARMSTRONG,                               :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: December 9, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Judge.

         {¶1}     Timothy Armstrong appeals his convictions for one count of

kidnapping, three counts of rape, and two counts of gross sexual imposition.

Because we conclude that the trial court erred when it sentenced Armstrong to life

imprisonment for kidnapping, we modify the sentence to an indefinite term of 15

years to life imprisonment. In all other respects, we affirm the judgment of the trial

court.

         {¶2}     Armstrong was indicted for one count of kidnapping, four counts of

rape, and two counts of gross sexual imposition. All of the offenses involved a girl

who was seven years old at the time of the alleged offenses. Prior to a trial before a

jury, the trial court conducted a hearing to determine whether the victim, K.C., was

competent to testify at trial. The court concluded that she was. The state later

moved that K.C. be permitted to testify via closed-circuit television outside the

presence of Armstrong. The trial court granted the state’s motion.

         {¶3}     The case proceeded to trial. During the first jury trial, the trial court

declared a mistrial due to the prejudicial testimony of one of the state’s witnesses. A

second jury trial began in June 2010.

         {¶4}     K.C. testified that she had been playing in her backyard when

Armstrong, who lived next door, asked her if she wanted to come into his backyard to

play with his dogs and cats.        Armstrong lifted her from her backyard into his

backyard.       According to K.C., Armstrong took pictures of her with his cellular

telephone and eventually made her a sandwich in his house. K.C. testified that she

had eaten the sandwich in Armstrong’s bedroom. While she was in his bedroom,

Armstrong had turned on a “gross movie” in which “people were licking private parts




                                              2
                    OHIO FIRST DISTRICT COURT OF APPEALS



and [were] naked.” Armstrong then told K.C. to remove her pants and underwear

and get under the blanket on his bed. Armstrong removed his clothes and got under

the blanket with K.C.    At trial, K.C. described multiple acts of oral sex, digital

penetration, and vaginal penetration by Armstrong. According to K.C.’s testimony,

Armstrong had told her to urinate in a trash can so that his mother, who was napping

in the house, would not know that K.C. was in the house. K.C. testified that she had

heard her father calling for her from her family’s backyard, but that Armstrong had

told her not to tell what had happened and to stay in his room.

       {¶5}    K.C.’s father, J.L., testified that he and his wife and K.C. lived next

door to Armstrong. According to J.L., while he was at work on August 1, 2009, he

had spoken with his wife who told him that his daughter was missing. J.L. rushed

home to look for his daughter. When he had learned that K.C. had last been seen in

Armstrong’s yard, he had banged on Armstrong’s door, asking for his daughter.

Armstrong had replied that the girl was not in his house and had suggested that she

might be in his backyard. When J.L. had run to Armstrong’s backyard, he had seen

Armstrong leading K.C. out of his back door. K.C. had run to her father who had

taken her back to his house. According to J.L., when either his wife or he had asked

the victim if Armstrong had removed her clothes, the victim had begun to cry. J.L.

had called 911 and had taken the victim to Cincinnati Childrens Hospital.

       {¶6}    Linda Smets-Ulrich, a social worker, testified that she had

interviewed K.C. in the emergency room at the hospital. According to Smets-Ulrich,

K.C. had described acts of oral sex, digital penetration, and vaginal penetration that

Armstrong had performed while K.C. was in his bedroom. Dr. Berkeley Bennett, a

child-abuse pediatric specialist at Childrens Hospital, testified that he had examined

K.C. and had found no physical evidence of sexual abuse. Bennett stated that even



                                          3
                     OHIO FIRST DISTRICT COURT OF APPEALS



though he had found no physical evidence of abuse, his opinion was that K.C. had

been sexually abused.

       {¶7}    Police officer Jason Boyd testified that he had executed a search

warrant at Armstrong’s house.        During the search pornographic DVDs and

videotapes were recovered from Armstrong’s bedroom. One of the movies contained

scenes that were similar to those described by K.C. Armstrong’s cellular telephone

was also seized from the house. The cellular telephone contained a video of K.C. that

corresponded with her description of the events before she had entered Armstrong’s

house. Tracy Sundemeier, a serologist in the Hamilton County Coroner’s office,

testified that she had analyzed evidence that had been recovered from Armstrong’s

house and from K.C.’s house. Sundemeier testified that she had found the presence

of amalyse, which is a component of saliva, in a stain on the underwear that K.C. had

been wearing when she returned from Armstrong’s house. According to Sundemeier,

the main DNA profile of the stain matched the DNA profile of Armstrong.

       {¶8}    Armstrong testified in his own behalf. According to Armstrong, he

had lifted K.C. over into his backyard and had brought her into his house to give her

a sandwich. He claimed that he had not shown K.C. a pornographic movie, and that

she had not been in his room for more than a minute. He denied having had any

sexual contact with K.C.

       {¶9}    At the conclusion of the trial, the jury found Armstrong guilty of all of

the charges, except for rape involving vaginal penetration. Armstrong was acquitted

of that charge. Following a sentencing hearing, the trial court sentenced Armstrong

to imprisonment for life for the kidnapping count, imprisonment for life without the

possibility of parole for each of the three rape counts, and five years for each of the

gross-sexual-imposition counts. The sentences were to run concurrently.



                                           4
                       OHIO FIRST DISTRICT COURT OF APPEALS



                                 Victim’s Testimony

       {¶10}   For ease of discussion, we consider the assignments of error in the

order that the alleged errors arose in the proceeding. Armstrong’s second and third

assignments of error challenge the testimony of K.C. In the second, he asserts that

the trial court erred when it determined that K.C. was competent to testify. In the

third, he asserts that the trial court erred when it allowed K.C. to testify via closed-

circuit television outside Armstrong’s presence.

       {¶11}   Under Ohio law, the competency of witnesses under the age of ten

must be established. Evid.R. 601(A); State v. Wallace (1988), 37 Ohio St.3d 87, 94,

524 N.E.2d 466. “In determining whether a child under ten is competent to testify,

the trial court must take into consideration (1) the child’s ability to receive accurate

impressions of fact or to observe acts about which he or she will testify, (2) the child’s

ability to recollect those impressions or observations, (3) the child’s ability to

communicate what was observed, (4) the child’s understanding of truth and falsity

and (5) the child’s appreciation of his or her responsibility to be truthful.” State v.

Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus. We review the trial

court’s determination of a witness’s competency under an abuse-of-discretion

standard. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph

one of the syllabus.

       {¶12}   The trial court conducted a voir dire of K.C. prior to trial. During the

voir dire, K.C. was able to answer questions about her age, her school, her favorite

teacher, and her favorite book. She was also able to distinguish between telling the

truth and lying. We are unable to conclude that the trial court abused its discretion

when it concluded that K.C. was competent to testify. The second assignment of

error is overruled.



                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13}   Armstrong also argues that K.C. should not have been permitted to

testify via closed-circuit television and that Armstrong should have been permitted to

be present during K.C.’s testimony. Under R.C. 2945.481(C), a prosecutor may

request that a child victim testify via closed-circuit television without the defendant

in the room.    R.C. 2945.481(E)(3) provides that the trial court may grant the

prosecutor’s request if it “determines that the child victim is unavailable to testify in

the room in the physical presence of the defendant due to * * * [t]he substantial

likelihood that the child victim will suffer serious emotional trauma from so

testifying.” We will affirm the trial court’s determination if its findings are supported

by competent, credible evidence. State v. Gresham (Oct. 22, 1999), 1st Dist. No. C-

990077, citing State v. Self (1990), 56 Ohio St.3d 73, 80, 564 N.E.2d 446.

       {¶14}   The trial court conducted a hearing on the prosecutor’s motion to

allow K.C. to testify via closed-circuit television. During the hearing, Dr. Frank

Putnam, an expert in child and adolescent psychiatry, testified that he had met with

K.C. and that, in his opinion, testifying in the presence of Armstrong would be

extremely stressful for K.C., potentially disruptive in her healing process, and

traumatic for her. Based on Putnam’s testimony and its own interview with K.C., the

trial court concluded that K.C. should testify via closed-circuit television. Having

reviewed the record, we conclude that the trial court’s determination under R.C.

2945.481(E) was supported by competent, credible evidence, so we overrule

Armstrong’s third assignment of error.

                    Sufficiency and Weight of the Evidence

       {¶15}   Armstrong’s next three assignments of error challenge the sufficiency

and weight of the evidence of his offenses.        In the fourth, he asserts that his

convictions were not supported by sufficient evidence. In the fifth, he asserts that his



                                           6
                      OHIO FIRST DISTRICT COURT OF APPEALS



convictions were against the manifest weight of the evidence. And in the sixth, he

asserts that the trial court erred when it overruled his Crim.R. 29 motion for an

acquittal.

        {¶16}   The standard of review for a sufficiency claim and for the denial of a

Crim.R. 29 motion for an acquittal is the same. When an appellant challenges the

sufficiency of the evidence, we must determine whether the state presented adequate

evidence on each element of the offense so that a rational trier of fact could have

found all the essential elements of the offense beyond a reasonable doubt. See State

v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. On the other

hand, when reviewing whether a judgment is against the manifest weight of the

evidence, we must determine whether the trier of fact clearly lost its way and created

a manifest miscarriage of justice. See id. at 387.

        {¶17}   Armstrong was convicted of kidnapping with a sexual-motivation

specification. Under R.C. 2905.01(A)(4), a person is guilty of kidnapping if he “by

force, threat, or deception, or, in the case of a victim under the age of thirteen * * *,

by any means, [removes] another from the place where the other person is found or

[restrains] the liberty of the other person * * * [t]o engage in sexual activity * * * with

the victim against the victim’s will.” We conclude that the state presented sufficient

evidence that Armstrong had removed K.C. from her backyard into his backyard, and

that he had further persuaded her to enter his house and, later, his bedroom. The

state also presented evidence that K.C. was seven years old at the time of the offense,

and that Armstrong had taken her into his house to engage in sexual activity against

K.C.’s will.

        {¶18}   Armstrong was also convicted of three counts of rape in violation of

R.C. 2907.02(A)(1)(b). According to that statute, a person is guilty of the offense of



                                            7
                       OHIO FIRST DISTRICT COURT OF APPEALS



rape if he engages in sexual conduct with a person less than 13 years old. In the three

counts for which Armstrong was convicted, the state presented sufficient evidence

that he had engaged in sexual conduct with K.C., specifically, fellatio, cunnilingus,

and digital penetration.

       {¶19}   R.C. 2907.05(A)(4) provides that a person is guilty of gross sexual

imposition if he has “sexual contact with another, not the spouse of the offender” or

causes “another, not the spouse of the offender, to have sexual contact with the

offender” when “[t]he other person * * * is less than thirteen years of age[.]” Sexual

contact is defined as “touching of an erogenous zone of another, including without

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a

breast, for the purpose of sexually arousing or gratifying either person.”        R.C.

2907.01(B).    With respect to the two gross-sexual-imposition counts, the state

presented sufficient evidence that Armstrong had touched or rubbed K.C.’s vagina

and buttocks and that he had caused her to touch his penis. We conclude that the

state presented sufficient evidence of all of the elements of the offenses for which

Armstrong was convicted.

       {¶20}   And having reviewed the record, we are unable to conclude that the

jury lost its way when it found him guilty of three counts of rape, two counts of gross

sexual imposition, and one count of kidnapping. The jury was in the best position to

determine the credibility of the witnesses. The fourth, fifth, and sixth assignments of

error are overruled.

                                Sentencing Issues

       {¶21}   The first assignment of error asserts that the trial court erred when it

sentenced Armstrong to life imprisonment without the possibility of parole for the

rape offenses. Armstrong contends that the trial court had no authority to sentence



                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



him to life imprisonment without the possibility of parole because the jury did not

separately find that K.C. was under the age of ten when the offenses occurred.

       {¶22}   Armstrong was found guilty of R.C. 2907.02(A)(1)(b), which is a first-

degree felony. The basic prison term for a first-degree felony is a definite term

within the range of five to ten years. R.C. 2929.14(A)(1). But R.C. 2907.02(B)

provides that an offender under R.C. 2907.02(A)(1)(b) shall be sentenced to a term

of life imprisonment, unless other exceptions in R.C. 2907.02(B) apply. One of the

exceptions in the subsection applies if the victim is less than ten years old. In that

case, the court may impose a sentence of life without parole. We note that contrary

to Armstrong’s assertion that the victim’s age is an additional aggravating factor

under R.C. 2971.03, which provides for sentencing of a sexually violent offender with

a predator specification, R.C. 2907.02(B) provides that the trial court’s discretion to

sentence an offender to a term of life without parole is “in lieu of sentencing the

offender to a prison term or term of life imprisonment pursuant to section 2971.03 of

the Revised Code.”

       {¶23}   Armstrong likens this case to State v. Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256, 860 N.E.2d 735, in which the Ohio Supreme Court held that “a

verdict form signed by a jury must include either the degree of the offense of which

the defendant is convicted or a statement that an aggravating element has been

found to justify convicting a defendant of a greater degree of a criminal offense.” Id.,

syllabus. But Pelfrey is inapposite to the case before us. The age of the victim in this

case did not change the degree of the offenses of which Armstrong was convicted. He

was convicted of first-degree felony offenses.

       {¶24}   In the indictment, each count of rape alleged that K.C. was less than

ten years old at the time of the offense. The evidence that K.C. was seven years old



                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS



when the offenses occurred was unchallenged at trial. And for each rape count, the

jury was instructed, “Before you can find the defendant guilty of Rape, you must find

beyond a reasonable doubt that on or about the 1st day of August 2009, and in

Hamilton County, Ohio, the defendant, TIMOTHY J. ARMSTRONG, purposefully

engaged in sexual conduct * * * with [K.C.], who was not the spouse of TIMOTHY J.

ARMSTRONG, and [K.C.] was less than thirteen years of age, whether or not the

defendant knew the age of the victim, and the victim was less than ten years of age in

violation of Section 2907.02(A)(1)(b) of the Ohio Revised Code.” The age of the

victim was not a specification for which the jury needed to make a separate finding.

It was within the trial court’s discretion to sentence Armstrong to life without the

possibility of parole for the rape offenses. The first assignment of error is overruled.

       {¶25}   Armstrong asserts in the seventh assignment of error that the

sentence imposed by the trial court amounted to an abuse of discretion. Armstrong

contends that the court should have sentenced him to 15 years to life for kidnapping.

We agree.

       {¶26}   R.C. 2905.01(C)(3)(a) provides that if a defendant is found guilty of

kidnapping under R.C. 2905.01 and of a sexual-motivation specification, and if the

victim is less than 13 years old, the defendant shall be sentenced “to an indefinite

term consisting of a minimum term of fifteen years and maximum term of life

imprisonment.”     Here, the trial court improperly sentenced Armstrong to life

imprisonment. We conclude that the sentence imposed for kidnapping was contrary

to law. See R.C. 2953.08(A)(4). The seventh assignment of error is sustained.

       {¶27}   The final assignment of error is that the trial court erred when it

sentenced Armstrong separately on the six offenses. Armstrong argues that the trial

court should not have convicted him of all of the offenses because they were all allied



                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



offenses of similar import. Under R.C. 2941.25, a trial court, in a single proceeding,

may convict and sentence a defendant for two or more offenses “ ‘having as their

genesis the same criminal conduct or transaction,’ ” if the offenses (1) are not allied

offenses of similar import, (2) were committed separately, or (3) were committed

with a separate animus as to each offense. State v. Bickerstaff (1984), 10 Ohio St.3d

62, 65-66, 461 N.E.2d 892, quoting State v. Moss (1982), 69 Ohio St.2d 515, 433

N.E.2d 181.

       {¶28}   The analysis required to determine whether two or more offenses are

allied offenses of similar import is an evolving one. Prior to the Ohio Supreme

Court’s recent decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, courts were to compare the elements of the offenses in the abstract to

determine whether the elements corresponded to such a degree that the commission

of one offense would result in the commission of the other. See State v. Rance, 85

Ohio St.3d 632, 636, 1999-Ohio-291, 710 N.E.2d 699. In Johnson, the Ohio Supreme

Court overruled Rance and held that “[w]hen determining whether two offenses are

allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of

the accused must be considered.” Johnson, supra, syllabus. “Consequently, if the

evidence adduced at trial reveals that the state relied upon the same conduct to

support the two offenses and that the offenses were committed neither separately

nor with a separate animus as to each, then the defendant is afforded the protection

of R.C. 2941.25, and the trial court errs in imposing separate sentences for the

offenses.” State v. Johnson, 1st Dist. No. C-090620, 2011-Ohio-3143.

       {¶29}   We first consider whether the rape offenses were allied offenses of

similar import. Armstrong was found guilty of three counts of rape in violation of

the same statutory subsection, R.C. 2907.02(A)(1)(b).        The counts alleged that



                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



Armstrong had engaged in sexual conduct with K.C. by means of fellatio,

cunnilingus, and “insertion [of], however slight, any part of the body or any

instrument, apparatus, or other object into the vaginal * * * cavity.” The evidence

that was presented at trial was that each act involved a distinct, different sexual

activity.   See R.C. 2907.01(A).    Thus, they were separate offenses for merger

purposes. See State v. Strong, 1st Dist. Nos. C-100484 and C-100486, 2011-Ohio-

4947. The trial court did not err when it refused to merge the rape counts.

        {¶30}   Similarly, the gross-sexual-imposition counts were based on separate

acts of sexual contact by Armstrong. One alleged that Armstrong had had sexual

contact with K.C., and the other alleged that he had caused her to have sexual contact

with him. The evidence at trial demonstrated separate incidences of gross sexual

imposition. K.C. testified that Armstrong had rubbed her buttocks and her vagina,

and that he had told her to touch his penis. We conclude that the trial court did not

err when it refused to merge the gross-sexual-imposition counts with each other or

with the rape counts.

        {¶31}   Finally, we consider whether the rape counts should have been

merged with the kidnapping count.             In this case, kidnapping under R.C.

2905.01(A)(1) and the rapes were allied offenses of similar import. But our analysis

does not end there. We must determine whether the kidnapping was done with a

separate animus so as to support a separate conviction for kidnapping.

        {¶32}   “Where the restraint or movement of the victim is merely incidental

to a separate underlying crime, there exists no separate animus sufficient to sustain

separate convictions; however, where the restraint is prolonged, the confinement is

secretive, or the movement is substantial so as to demonstrate a significance

independent of the other offense, there exists a separate animus as to each offense



                                         12
                      OHIO FIRST DISTRICT COURT OF APPEALS



sufficient to support separate convictions.” State v. Logan (1979), 60 Ohio St.2d 126,

135, 397 N.E.2d 1345.        Here, the state presented substantial evidence that

Armstrong’s confinement of K.C. was secretive. K.C. testified that he had told her to

hide when his mother had come to his bedroom door and later when K.C.’s father

had been calling for her.      The secretiveness of the confinement was further

demonstrated in that K.C. was compelled to urinate in a trash can in Armstrong’s

room, rather than leave his room. Finally, officers testified that the windows in

Armstrong’s room where K.C. was confined were covered with cardboard, shielding it

from outside view. We conclude that the secretive confinement demonstrated in the

record signifies a separate animus and supports a conviction for the kidnapping

apart from the rape offenses. The trial court properly convicted Armstrong of each of

the offenses. The eighth assignment of error is overruled.

       {¶33}    Because the sentence that the trial court imposed for the kidnapping

was contrary to law, we modify the sentence for kidnapping to an indefinite term of

15 years to life. See R.C. 2953.08(G)(2). In all other respects, the judgment of the

trial court is affirmed.

                                                         Judgment affirmed as modified.




D INKELACKER , P.J., and H ILDEBRANDT , J., concur.


Please Note:
       The court has recorded its own entry this date.




                                           13
