[Cite as State v. Schellentrager, 2017-Ohio-9275.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105652




                                       STATE OF OHIO
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                       MARTIN J. SCHELLENTRAGER
                                                           DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-607959-A

        BEFORE: Keough, A.J., E.A. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: December 28, 2017
ATTORNEY FOR APPELLANT

Robert C. Aldridge
Law Offices of Richard W. Landoll
9 Corporation Center
Broadview Heights, Ohio 44147


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: John Kirkland
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

      {¶1}    Defendant-appellant,   Martin   Schellentrager,   appeals   his   abduction

conviction. For the reasons that follow, we affirm.

      {¶2} In July 2016, Schellentrager was charged with one count of kidnapping, a

first-degree felony violation of R.C. 2905.01(B)(1). The matter was tried to the bench.

Schellentrager was found not guilty of kidnapping, but was found guilty of the

lesser-included offense of abduction, a third-degree felony violation of R.C.

2905.02(A)(1). The court sentenced Schellentrager to five years of community control

sanctions. This timely appeal follows.

                                         I. Facts

      {¶3} On July 10, 2016, the victim, a ten-year old boy, and his family attended his

brother’s ice hockey practice at Iceland Arena in Strongsville, Ohio. By the end of the

practice, the victim was bored and decided to leave his parents and siblings to check out

the game room that was in the general lobby area, but outside of the ice rink. As he

approached the doors exiting the East ice rink, a stranger, later identified as

Schellentrager, approached him and placed his arm around the victim’s shoulder. At this

moment, the victim’s father noticed the man with his son. Thinking that his son may

have struck the man with the door, father was not immediately alarmed, but thought he

would start walking toward them to see what occurred. However, when he saw the man

whispering in his son’s ear and walking toward the main exit, father became increasingly

concerned and approached the man. Father told Schellentrager to “get your hands off my
son.” Startled and nervous, Schellentrager complied by putting his hands in the air and

exiting the arena. Two of the arena employees followed him outside and learned that he

was staying next door at the Motel 6.

       {¶4} The victim testified that Schellentrager put his arm around his shoulder and

whispered to him that he could go up to the front desk and put food on Marty’s tab, but

that the victim had to tell his dad first. The victim testified that he would have asked his

dad, but was unable to because Schellentrager had his arm around him, walking him

toward the main exit of the facility. The victim admitted that Schellentrager did not

grab, hurt, or physically threaten him, but stated that he did not want to go to the front

door, was scared, and worried by Schellentrager’s conduct.

       {¶5} Teresa Silva was standing in the elevated gallery area between the two ice

rinks when she noticed an older man walking through the front door of the facility. She

stated she notice him immediately because he was not wearing any shoes and was

wearing either short shorts or no pants under his shirt. According to Silva, the man was

walking erratically while looking for something, and walked over to the concession area.

Although the concession stand was closed, Schellentrager leaned over the counter. At

that moment, Silva noticed that Schellentrager was only wearing underwear. When

Schellentrager went around the counter, Silva became worried and phoned her husband,

who was also at the ice arena. However, when she looked up, she saw the man come up

behind a little boy, wrapping his arms around him, and saying something in his ear. She

described Schellentrager’s actions as “a bear hug with both arms.” According to Silva,
Schellentrager was pushing the boy toward the front door. As she started to approach

them, she notice other adults near the entrance who stopped Schellentrager and the boy.

       {¶6} Police officers Philip Siwik and Bradley Busch responded to a call about a

suspicious male attempting to take a child from Iceland Arena. When they located

Schellentrager at the Motel 6, he admitted that he went to Iceland Arena to get food for a

friend. When the officers questioned him about his interactions with the young boy, he

admitted that he “bear hugged” a boy because he was a former teacher and always like

kids. According to the officers, Schellentrager admitted that he whispered to the child

about putting food on his tab. When questioned why, he responded, “I wanted the kid to

come to my room and play with me.” According to Officer Siwik, Schellentrager was

very forthcoming. However, when they attempted to arrest him, he started yelling, acting

erratically by hopping on one foot, and jumping into a shrub. The officers admitted they

did not discover anything in his hotel room that caused them alarm.

       {¶7} At the close of the state’s case, Schellentrager moved for a Crim.R. 29

judgment of acquittal, contending that the state failed to prove the elements of

kidnapping, specifically, that Schellentrager “created a substantial risk of serious physical

harm.” The state acknowledged that proving this element might be an issue, which was

the justification for requesting lesser-included offenses to be submitted for deliberation.

The trial court took the arguments under advisement and the following day, denied

Schellentrager’s motion, finding that under the Crim.R. 29 standard, reasonable minds
could reach different conclusions that Schellentrager knowingly under the circumstances

created a substantial risk of serious physical harm to the victim.

       {¶8} Joseph Schellentrager, a school psychologist, testified on behalf of his brother

stating that he was shocked when he found out why his brother was arrested because his

brother loved, valued, and cared for children. Joseph testified that since his brother’s

retirement from teaching and a fall in 2007 that caused him to be in a coma for two

weeks, Schellentrager suffered from brain trauma and various mood disorders. He told

the court that his brother did not like the effect of the medications, so he stopped taking

them. He noticed a change in his brother’s behavior, and surmises that this change

caused the demise of his brother’s marriage.

       {¶9} Schellentrager, age 65, testified in his own defense that it was not his

intention to hurt the victim and expressed remorse for scaring the victim. He denied

telling the officers that he wanted to take the victim back to his hotel room; it was his

intention to treat the victim and his friends to snacks at the concession stand. He

explained that he went inside the ice arena to get food for a friend because he has a

running tab at the ice rink concession stand. He testified that he saw a young kid come

out of the East rink and walk toward the snack bar. Thinking that the young boy just

finished with practice, he approached the boy and told him to take his teammates to the

snack bar and put the items on Marty’s tab, but to be sure to tell your dad first. When the

young kid questioned what was said, Schellentrager put his arm around the child and

walked him away from the busy traffic in the main lobby. He said he knelt down to talk
to the boy, instead he heard a voice from behind him telling him to remove his hands from

the boy. He complied and left with two employees, explaining what occurred and where

he was staying. Schellentrager testified that he was shocked when the police arrived, but

now realizes that the father must have called the police.

                            II. Sufficiency of his Conviction

       {¶10} Schellentrager was charged with kidnapping in violation of R.C.

2905.01(B)(1). He was found not guilty, however, of kidnapping, but guilty of the

lesser-included offense of abduction, a third-degree felony violation of R.C. 2905.02(A).

In his first and second assignments of error, Schellentrager challenges the sufficiency of

the evidence at various stages at trial. He contends in his second assignment of error

that the trial court erred in denying his Crim.R. 29 motion for judgment of acquittal on the

kidnapping charge made following the state’s case. In his first assignment of error,

Schellentrager contends that the trial court erred in convicting him of abduction in

violation of R.C. 2905.02. The two assignments of error will be discussed together.

       {¶11} When an appellate court reviews a Crim.R. 29 motion, the motion should be

reviewed in the context of whether the evidence presented supported the offense for

which the defendant was convicted. State v. Carney, 10th Dist. Franklin No. 00AP-502,

2000 Ohio App. LEXIS 5807, * 4 (Dec. 14, 2000) (the conviction for the lesser-included

is the reviewable charge on appeal); see also In re Moore, 10th Dist. Franklin No.

04AP-581, 2004-Ohio-6357, ¶ 5. An indictment on a greater offense necessarily and

simultaneously charges a defendant with lesser included offenses as well. State v. Lytle,
49 Ohio St.3d 154, 157, 551 N.E.2d 950 (1990).          Accordingly, a dismissal of the

kidnapping charge set forth in the indictment would not have mandated a dismissal of the

indictment against Schellentrager.     See State v. Turner, 10th Dist. Franklin No.

97APA05-709, 1997 Ohio App. LEXIS 6021, *6 (Dec. 30, 1997) (finding the

lesser-included conviction is the reviewable offense on appeal). Accordingly, the issue

on appeal is not whether the evidence was sufficient following the state’s case to support

a conviction for kidnapping, but whether the trial court should have granted

Schellentrager’s motion for acquittal with respect to the lesser included offense of

abduction.

      {¶12} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test

for sufficiency requires a determination of whether the prosecution met its burden of

production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

12. An appellate court’s function when reviewing the sufficiency of the evidence to

support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d

765 (2001). “‘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.’” State v. Walker, 150 Ohio

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
       {¶13} Viewing the evidence in the light most favorable to the prosecution,

sufficient evidence was presented to support a conviction for abduction. Pursuant to

R.C. 2905.02(A), no person, without privilege to do so, shall knowingly (1) by force or

threat, remove another from the place where the other person is found; or (2) by force or

threat, restrain the liberty of another person under circumstances that create a risk of

physical harm to the victim or place the other person in fear. Force is defined as “any

violence, compulsion, or constraint physically exerted by any means upon or against a

person or thing.”    R.C. 2901.01(A)(1).      The amount of physical exertion may be

minimal. See, e.g., State v. Elam, 2016-Ohio-5619, 76 N.E.3d 391 (8th Dist.).

       {¶14} Testimony was presented that Schellentrager at the very least placed his arm

around the victim’s shoulder and led him toward the front exit, away from the concession

area. Silva testified that she witnessed Schellentrager wrap his arms around the victim,

like a bear hug. She testified that she believed that Schellentrager was pushing the

victim toward the door.

       {¶15} The victim testified that he did not want to go to the front door, but went in

that direction because Schellentrager, a stranger, walked him to that area. The victim

also testified that Schellentrager never let him go to talk to his dad, despite being told to

go tell his dad.     Finally, the victim testified that he felt scared and worried by

Schellentrager’s conduct.

       {¶16} Therefore, sufficient evidence was presented to support a conviction for

abduction under either subsection R.C. 2905.02(A)(1) or (2).                Schellentrager’s
unprivileged conduct of placing his arm around the victim and leading him away from the

ice rink area to the front door was sufficient to support a conviction of abduction in

violation of R.C. 2905.02(A).           Accordingly, the trial court properly denied

Schellentrager’s Crim.R. 29 motion for judgment of acquittal at the close of the state’s

case.    Additionally, for the reasons stated, the trial court did not err in finding

Schellentrager guilty of the lesser-included offense of abduction.

        {¶17} The assignments of error are overruled.

        {¶18} Judgment affirmed.

        It is ordered that appellee recover from 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.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
