[Cite as State v. Smith, 2012-Ohio-734.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 24402
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 07-CR-4895
v.                                                :
                                                  :
THEODORE W. SMITH                                 :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                :
                                                  :
                                               ...........

                                               OPINION

                             Rendered on the 24th day of February, 2012.

                                               ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio
45429-1771
      Attorney for Defendant-Appellant

                                                       .............

FAIN, J.

        {¶ 1} Defendant-appellant Theodore Smith appeals from his conviction and sentence

for Kidnaping and Unlawful Restraint. His assigned counsel has filed a brief under the

authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

indicating that he could find no potential assignments of error having arguable merit. Smith
                                                                                             2


was accorded the opportunity to file, and did file, his own pro se brief. In that brief, he

contends that his conviction and sentence must be reversed because the prosecutor improperly

submitted evidence that a knife was used in the commission of the offenses and the trial court

abused its discretion by permitting the introduction of this evidence. Smith also contends that

the use of the knife evidence violated his constitutional right to be free from double jeopardy

and that it created a “fatal variance” between the indictment and the evidence presented at

trial. Finally, Smith contends that the three convictions involve allied offenses of similar

import and that the trial court erred by failing to merge them for purposes of sentencing.

       {¶ 2} We conclude that the potential assignments of error set forth by Smith have no

arguable merit. Any error in failing to merge the convictions for purposes of sentencing is, at

best, harmless error. We find no arguable error or abuse of discretion by reason of the

introduction of evidence of the use of a knife during the commission of the offenses.

       {¶ 3} We have performed our duty, under Anders v. California, to independently

review the record. We have found no potential assignments of error having arguable merit.

       {¶ 4} Accordingly, the judgment of the trial court is Affirmed.

                                               I

       {¶ 5} In November 2007, Cassie Davis approached an acquaintance in her apartment

building, identified only as “Anthony,” seeking to borrow money with which to purchase

diapers for her toddler. Theodore Smith was with Anthony when Davis asked to borrow the

money. Anthony got ten dollars from Smith and handed it to Davis in front of Smith.

       {¶ 6} Approximately one week later, on November 27, Smith knocked on Davis’s

apartment door asking about Anthony’s whereabouts. Davis did not know Smith’s name, but
                                                                                                         3


recognized him as the individual with Anthony when she borrowed the money.                            Davis

indicated that Anthony had moved and she was not aware of his current residence. Before

Smith left, he told Davis that if Anthony did not repay him the ten dollars given to Davis, he

would seek the money from Davis.

       {¶ 7} On the morning of November 28, Davis awoke to a person dragging her by the

hair from her bed down the hallway to her apartment living room. She recognized the person
             1
as Smith.            Smith began demanding that Davis return his money.                              Davis’s

eighteen-month-old son began crying, and Smith ordered Davis to get the child and bring him

into the living room. During the course of the next three hours, Smith kept Davis and the

child in the living room. During this three-hour time period, Smith repeatedly demanded the

repayment of his money. He made comments regarding a woman getting beaten for breaking

out his car window and that he had “a bunch of friends who would love to bash [Davis’s] head

in.” He further told her that he was going to “add interest” to the amount owed. Davis did

not have any money in her apartment.

       {¶ 8} Around noon, Davis glanced out of the window and observed her sister, who

also lived in the building, walking to the bus stop to meet the sister’s child getting off the

school bus. Davis fabricated a story that she was employed at a local fast-food restaurant and

that her paycheck should be ready for her. Smith directed her to get the check. Davis told

him she would have to call to see if the check was ready, but that she did not have a telephone.

 Smith offered his cellular telephone, at which point Davis said she did not know the

telephone number for the restaurant. She then told him that her sister lived downstairs and

         1
             Although Davis recognized Smith, she did not know him by name prior to this incident.
                                                                                             4


that she could get a telephone directory book from the sister. Smith then grabbed a kitchen

knife, brandished it in front of the child, and told Davis to get the book and the money and that

he would keep Davis’s child until she returned.

         {¶ 9} Davis went to her sister’s apartment and immediately made a call to 911. On

the 911 tape Davis is distraught and indicates that a man in her apartment is going to “slit

[her] throat” if she does not give him money. She also indicates that the man is holding her

child captive. She indicated that she did not know the man’s name. Davis then gave the

telephone to her sister and returned to her apartment with a telephone directory. She then

placed a call to a fast-food restaurant and inquired whether her check was ready.            The

employees of the restaurant hung up on her. Within a few moments, police entered the

apartment and arrested Smith.

         {¶ 10} Smith was indicted on one count of Kidnapping in violation of R.C.

2905.01(A)(3) – Count I; one count of Kidnaping to facilitate the offense of Aggravated

Robbery in violation of R.C. 2905.01(A)(2) – Count II; one count of Aggravated Robbery with

a Deadly Weapon in violation of R.C. 2913.01(K) and 2911.01(A)(1) – Count III; and one

count of Kidnapping, Hold for Ransom of a Person Under the Age of Thirteen, in violation of

R.C. 2905.01(A)(1) – Count IV. Following a jury trial, Smith was convicted on counts I and

IV. He was found not guilty on Count II, but was convicted on the lesser-included offense of

Unlawful Restraint. Finally, he was found not guilty on Count III. Davis did not appear for

that trial.

         {¶ 11} Smith appealed that conviction and sentence.          This court reversed the

conviction, holding that the State “failed to demonstrate that it had exerted reasonable efforts
                                                                                                5


to secure Davis’s appearance at trial,” and that the trial court therefore erred by permitting the

introduction of her testimony taken during a prior parole hearing held regarding Smith. See,

State v. Smith, 2d Dist. Montgomery No. 22926, 2010-Ohio-745. The matter was remanded

for further proceedings. Id.

       {¶ 12} On remand, Smith was re-tried on two Kidnaping and one Unlawful Restraint

charges.   Smith elected to represent himself at trial.      Stand-by counsel was appointed.

Smith was convicted on all three charges and was sentenced to prison terms of nine years on

Count IV and six years on Count I, with the sentences to be served consecutively to each

other, for a total of fifteen years. Smith was sentenced to 59 days on Count II, and was

credited for time served, which exceeded 59 days. He was also classified as a “Tier 2 sex

offender/child victim offender,” with regard to Count IV.

       {¶ 13} Smith appealed. His assigned counsel has filed a brief under the authority of

Anders v. California, supra, reciting that he could find no potential assignments of error

having arguable merit. By a decision and entry filed herein on May 25, 2011, we informed

Smith that his counsel had filed an Anders brief and informed him of the significance of an

Anders brief. We advised Smith of his right to file a pro se brief assigning any errors for

review by this Court within sixty days of that order. Smith filed a motion seeking access to

the trial transcript, docket journal entries and jury verdict forms. We sustained that motion,

and Smith ultimately filed his own, pro se brief setting forth proposed assignments of error.

                                                II

       {¶ 14} Smith’s Fifth Assignment of Error states:

                     “V. ALLIED OFFENSES OF SIMILAR IMPORT.”
                                                                                            6




       {¶ 15} Smith contends that the trial court erred by failing to merge all of the offenses

for purposes of sentencing because “all of the offenses arose out of the same alleged criminal

transaction,” and are therefore allied offenses of similar import.

       {¶ 16} A defendant may be found guilty of, and convicted of, multiple allied offenses

of similar import so long as he is sentenced upon only one of them. In State v. Johnson, 128

Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, the Ohio Supreme Court recently revised

its allied-offense jurisprudence. The Johnson court stated 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.” Id. at syllabus.

       {¶ 17} Under Johnson, “[w]e determine the General Assembly's intent by applying

R.C. 2941.25, which expressly instructs courts to consider the offenses at issue in light of the

defendant's conduct.” Id. at ¶ 46. “In determining whether offenses are allied offenses of

similar import under R.C. 2941.25(A), the question is whether it is possible to commit one

offense and commit the other with the same conduct, not whether it is possible to commit one

without committing the other.” (Citation omitted.) Id. at ¶ 48. “If the offenses correspond to

such a degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import.” Id.

       {¶ 18} “If the multiple offenses can be committed by the same conduct, then the court

must determine whether the offenses were committed by the same conduct, i.e., ‘a single act,

committed with a single state of mind.’ ” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If the answer to both questions is yes, then the
                                                                                             7


offenses are allied offenses of similar import and will be merged.” Johnson at ¶ 50.

“Conversely, if the court determines that the commission of one offense will never result in

the commission of the other, or if the offenses are committed separately, or if the defendant

has separate animus for each offense, then, according to R .C. 2941.25(B), the offenses will

not merge.” Id. at ¶ 51 (emphasis in original).

       {¶ 19} We have recognized that separate convictions and sentences are permitted

when a defendant's conduct results in multiple victims. See, e.g., State v. Skaggs, 2d Dist.

Clark App. No. 10–CA–26, 2010–Ohio–5390. As a result, it was permissible for Smith to be

convicted and sentenced separately for the offenses he committed against each victim.

       {¶ 20} R.C. 2905.01 proscribes the offense of Kidnapping. That statute provides:

       (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:

               (1) To hold for ransom, or as a shield or hostage;

                ***

               (3) To terrorize, or to inflict serious physical harm on the victim or another.

       {¶ 21} The mens rea for R.C. 2905.01 offenses is “purposefully,” which is defined by

R.C. 2901.22(A) as follows:

       {¶ 22} “A person acts purposely when it is his specific intention to cause a certain

result, or, when the gist of the offense is a prohibition against conduct of a certain nature,

regardless of what the offender intends to accomplish thereby, it is his specific intention to
                                                                                           8


engage in conduct of that nature.”

       {¶ 23} Unlawful Restraint is defined in R.C. 2905.03, which states that “no person

without privilege to do so, shall knowingly restrain another of the other person's liberty.” “A

person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when he is aware that such circumstances probably exist.”                R.C.

2901.22(B).

       {¶ 24} In this case, Smith’s conduct was directed at two separate victims. Smith

dragged Davis from her bedroom to her living room. Then he ordered her to retrieve her

child from the bedroom. He next forced Davis to leave the apartment while he retained

custody of the child while brandishing a knife. Then, after Davis returned to the apartment,

he continued to restrain her and the child until the police arrived. All of these actions were

committed over the course of approximately three hours, during which time he threatened

Davis and the child with harm.

       {¶ 25} The act of dragging Davis from one room to another and holding her while

threatening her over the course of three hours satisfies the elements of R.C. 2905.01(A)(3).

Likewise, Smith’s act of retaining the child while Davis was forced to leave the apartment

satisfies the elements of R.C. 2905.01(A)(1).      Since this conduct involves two separate

victims, we conclude that the two Kidnapping convictions do not constitute allied offenses of

similar import.   In reaching this conclusion, we find no arguable merit to the contrary

proposition.

       {¶ 26} Smith was also convicted of Unlawful Restraint with regard to Davis. However
                                                                                             9


with regard to that conviction he was sentenced to time served. Therefore, even if the trial

court should have merged the Unlawful Restraint sentence with the Kidnapping sentence

pertaining to Davis, the actual prison sentence for that offense – time served – has by

definition already been served. Therefore, we cannot provide Smith any meaningful relief as

to that sentence, and this issue is therefore moot.

       {¶ 27} Smith’s Fifth Assignment of Error has no arguable merit.

                                                III

         {¶ 28} Smith’s First, Second, Third and Fourth Assignments of Error are as follows:

       I.      FATAL VARIANCE BETWEEN INDICTMENT AND EVIDENCE AT

               TRIAL.

       II.     MULTIPLE PROSECUTION SAME EVIDENCE.

       III.    PROSECUTORIAL MISCONDUCT.

       IV.     TRIAL COURT’S ABUSE OF DISCRETION.

       {¶ 29} All four of these arguments are based upon the fact that the State presented

evidence that Smith utilized a knife during the commission of these offenses. Smith contends

that the prosecutor acted improperly in presenting the evidence of the knife and that the trial

court abused its discretion by permitting the introduction of this evidence.         He further

contends that permitting the introduction of the evidence concerning the knife subjected him

to double jeopardy in violation of his constitutional rights and created a fatal variance between

the indictment and the evidence presented at trial. Smith’s arguments are premised upon the

fact that he was acquitted, during his first trial, of the charge of Aggravated Robbery with a

Deadly Weapon. He claims that the State was therefore precluded from introducing any
                                                                                          10


evidence of the knife at his second trial.

       {¶ 30} In criminal prosecutions, a variance is a conflict or disagreement between the

indictment and the proof in a matter essential to the charge. State v. Brozich, 108 Ohio St.

559, 141 N.E. 491 (1923), paragraph one of the syllabus. The evidence demonstrates that

Smith used a knife during the commission of the crime. It was relevant to the issue of

purpose and restraint. Crim.R. 33(E)(2) provides that no conviction shall be reversed because

of “[a] variance between the allegations and the proof thereof, unless the defendant is misled

or prejudiced thereby.” The determination of whether a variance is prejudicial must be made

on the facts of each case. United States v. Mills, 366 F.2d 512, 514 (6th Cir. 1966).

       {¶ 31} We note that the indictments for the charges that were re-tried following

remand did not contain information or language about a knife. The charge for Aggravated

Robbery with a Deadly Weapon was the only portion of the indictment that mentioned a knife.



       {¶ 32} In this case, the knife was not essential to prove the element of the offenses

charged. It was merely evidence regarding the course of the events in question. The record

shows that Davis, on the 911 tape, stated that Smith was going to “slit her throat.” There is

also evidence, from Davis’s testimony, that Smith brandished a knife in front of her child

when he sent Davis out of the apartment. While this evidence was relevant to demonstrate

that Smith acted purposefully in holding the child hostage, proof specifically that a knife was

used was not essential to prove the elements of the Kidnapping statute. Indeed, the mere fact

that Smith kept the child under his control, regardless of whether he utilized a knife in doing

so, allowed the jury to infer the element of purpose. Thus, we conclude that Smith was not
                                                                                               11


prejudiced or misled by the introduction of the knife into evidence. Indeed, it is clear from

the record that Smith was aware prior to trial that the State intended to utilize the knife as

evidence.

       {¶ 33} We also conclude that Smith was not subjected to double jeopardy by the use

of the knife evidence. Again, it was merely evidence regarding the course of the events.

Smith was not re-tried on the charge of Aggravated Robbery with a Deadly Weapon. There

was no additional charge or punishment that depended on proof that a knife was used in the

commission of the offense.

       {¶ 34} We turn to the claim that the prosecutor acted improperly by attempting to

submit the evidence that a knife was used during the commission of the instant offenses and

whether the trial court abused its discretion by allowing the knife into evidence.        “The test

for prosecutorial misconduct is whether [actions] were improper and, if so, whether they

prejudicially affected substantial rights of the accused. The touchstone of analysis ‘is the

fairness of the trial, not the culpability of the prosecutor.’ ” (Citation omitted.) State v. Jones,

90 Ohio St.3d 403, 420, 2000-Ohio-187, 739 N.E.2d 300, quoting Smith v. Phillips, 455 U.S.

209, 219, 102 S.Ct. 940, 71 L.Ed. 2d 78 (1982). Our review of the record fails to disclose

prosecutorial misconduct. Furthermore, the trial was not unfair.       Finally, “[t]he admission

of evidence is within the discretion of the trial court. * * * [T]hus the court's decision will be

reversed only upon a showing of an abuse of discretion.” (Citations omitted.) Banford v.

Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010–Ohio–2470, 932 N.E.2d 313, ¶ 38. We

find no abuse of discretion. The evidence demonstrates that Smith used a knife during the

commission of the crime. It was relevant to the issues of purpose, force and threat.
                                                                                            12


         {¶ 35} In reaching these conclusions, we find no arguable merit to their contrary

propositions.

         {¶ 36} Smith’s First, Second, Third and Fourth Assignments of Error have no arguable

merit.

                                               IV

         {¶ 37} In the performance of our duty, under Anders v. California, having conducted

an independent review of the record, we find no potential assignments of error having

arguable merit. The trial court went out of its way to ensure a fair trial, especially given that

Smith elected to represent himself. The hearing regarding Smith’s ability to represent himself

was complete, and there is nothing in this record to indicate that Smith was unable to assume

responsibility for his decision to act as his own counsel. Any errors made during trial were in

Smith’s favor, the trial court evincing an intent to make sure that the State did not take

advantage of Smith’s pro se status. Furthermore, Smith availed himself of aid from stand-by

counsel at points throughout the trial.

         {¶ 38} We conclude this appeal is wholly frivolous. The judgment of the trial court is

Affirmed.

                                                    .............

GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck
Carley J. Ingram
J. David Turner
Theodore W. Smith
Hon. Frances E. McGee
