[Cite as State v. Frierson, 2019-Ohio-317.]



                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 106841



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                       MICHAEL A. FRIERSON

                                                         DEFENDANT-APPELLANT




                                            JUDGMENT:
                                        REVERSED; REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-610325-A

        BEFORE: E.A. Gallagher, P.J., Kilbane, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 31, 2019
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
BY: Patrick Clark
Assistant Public Defender
250 E. Broad Street
#1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Melissa Riley
       Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Michael Frierson appeals his convictions entered in the

Cuyahoga County Court of Common Pleas.        For the following reasons, we reverse and remand.

       Facts and Procedural History

       {¶2} On October 3, 2016, Frierson was indicted on three counts of rape and two counts of

kidnapping. The rapes in counts one and two and the kidnapping in count three related to

crimes connected against L.C. and were alleged to have occurred on or about July 12, 1997.

The rape in count four and the kidnapping in count five related to crimes connected against C.C.

and were alleged to have occurred on or about September 29, 2000. Each count contained a

sexually violent predator specification and a notice of prior conviction.   Frierson did not have

any prior sexually violent offense convictions.
       {¶3} The trial court bifurcated the counts pertaining to L.C. and C.C. and separate jury

trials were held. As a result of the trials, Frierson was found not guilty of rape in count one,

guilty of rape in count two, guilty of kidnapping in count three, guilty of rape in count four and

not guilty of kidnapping in count five. The sexually violent predator specifications associated

with the counts for which the juries returned a guilty verdict proceeded to a bench trial, and the

trial court found Frierson guilty of those specifications.

       {¶4} The trial court imposed prison terms of 20 years to life for each of Frierson’s

convictions and ordered the three sentences to be served concurrently.

       Law and Analysis

       I. Sexually Violent Predator Specifications

       {¶5} In his first assignment of error, Frierson argues that the trial court committed plain

error when it found him guilty of the sexually violent predator specifications because the

application of R.C. 2971.01, as amended by the legislature in 2005, violates the Ex Post Facto

Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution.

       {¶6} Frierson did not raise that argument before the trial court.    “Failure to raise at the

trial court level the issue of the constitutionality of a statute or its application, which issue is

apparent at the time of trial, constitutes waiver of such issue and * * * therefore need not be

heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),

syllabus. However, the waiver doctrine of Awan has been ruled to be discretionary. State v.

Bruce, 8th Dist. Cuyahoga No. 89641, 2008-Ohio-926, ¶ 9, citing In re M.D., 38 Ohio St.3d 149,

527 N.E.2d 286 (1988), syllabus; State v. Colon,              8th Dist. Cuyahoga No. 103504,

2016-Ohio-3462, ¶ 13. Finding plain error in this instance, we elect to exercise our discretion

to consider Frierson’s Ex Post Facto argument.
        {¶7} The crux of the present Ex Post Facto challenge is stated as follows:      At the time

Frierson committed his crimes, he would not have been eligible for sexually violent predator

specifications under the language of R.C. 2971.01 as interpreted by the Ohio Supreme Court in

State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283.                The legislature

subsequently amended R.C. 2971.01 in 2005 such that Frierson would be eligible for sexually

violent predator specifications and the enhanced sentencing penalties commiserate therewith.

We find amended R.C. 2971.01, as applied to Frierson, to violate the Ex Post Facto Clause of the

United States Constitution.

        A. The Prior Version of R.C. 2971.01

        {¶8} At the time of Frierson’s crimes, R.C. 2971.01(H)(1) defined a “sexually violent

predator” as “a person who has been convicted of or pleaded guilty to committing, on or after the

effective date of this section [January 1, 1997], a sexually violent offense and is likely to engage

in the future in one or more sexually violent offenses.” See 1995 Ohio H.B. 180.

        B. State v. Smith

        {¶9} In State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, the Ohio

Supreme Court held that a conviction of a sexually violent offense cannot support the

specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if

the conduct leading to the conviction and the sexually violent predator specification are charged

in the same indictment. Id. at syllabus. In interpreting the language of R.C. 2971.01(H)(1), the

court held:

        These words clearly indicate that at the time of indictment, the person has already
        been convicted of a sexually violent offense. A grand jury cannot indict based on
        a conviction that has not occurred and may not ever occur.

Id. at ¶ 18.
        [T]he General Assembly intended that a conviction of a sexually violent offense
        that existed prior to the current indictment must be used to support a
        sexually-violent-predator specification.

Id. at ¶ 27.

        Under the state’s interpretation of R.C. 2971.01(H)(1), R.C. Chapter 2971 would
        impose severe penalties on persons who are first-time offenders but who are also
        determined to be sexually violent predators. For example, a person convicted of
        gross sexual imposition pursuant to R.C. 2907.05(A)(4), a third-degree felony,
        identified as a sexually violent offense by R.C. 2971.01(L)(1), would normally be
        subject to a maximum sentence of five years’ imprisonment. R.C. 2907.05(B) and
        2929.14(A)(3). However, under the state’s interpretation of R.C. 2971.01(H)(1),
        even a first-time offender could be defined as a sexually violent predator and
        would be subject to a maximum sentence of life in prison under R.C.
        2971.03(A)(3). R.C. Chapter 2971 is a sentence-enhancement statute, and
        consequently, we must construe any ambiguities against the state. R.C.
        2901.04(A). We decline to interpret R.C. 2971.01(H)(1) to permit the state to
        subject first-time offenders of certain sexual offenses to such draconian sentence
        enhancements without an unambiguous mandate from the General Assembly. To
        do so would conflict with the criminal-sentencing guidelines.

Id. at ¶ 28-29.

        C. Amendment of R.C. 2971.01(H)(1).

        {¶10} In response to Smith, the General Assembly modified R.C. 2971.01(H)(1) in 2005,

replacing the phrase “has been convicted of or pleaded guilty to committing” with the word

“commits.” It is now no longer necessary for a sex offender to have a prior conviction of a

sexually violent offense in order to satisfy the sexually violent predator specification.

        D. The Application of Amended R.C. 2971.01(H)(1) to Frierson Violates the Ex Post
        Facto Clause

        {¶11} Retroactive changes in the measure of punishment are impermissibly ex post facto

if they subject a defendant to a more severe sentence than was available at the time of the

offense. State v. Furness, 8th Dist. Cuyahoga No. 99930, 2014-Ohio-414, ¶ 11, citing State v.

Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829. The Ex Post Facto Clause found

in Section 10, Article I of the United States Constitution, bars “[e]very law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when

committed.” State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 50,

quoting Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 3 Dall. 386 (1798).

         {¶12} We find the Ex Post Facto Clause to be applicable in this instance.        Under the

plain language in R.C. 2971.01(H)(1) as it existed at the time of Frierson’s offenses, he was not

eligible for the enhanced, indefinite sentencing under R.C. 2971.03 because he did not qualify as

a sexually violent predator. As the Ohio Supreme Court stated in Smith, the words of R.C.

2971.01(H)(1) as it existed during the relevant periods clearly indicated that at the time of

indictment, the person must have already been convicted of a sexually violent offense in order to

be eligible for the specification.      The legislature’s subsequent amendment of the statute

following Smith was not mere “clarification” as the state argues, but a significant and substantive

change to the definition of “sexually violent predator,” allowing, for the first time, the underlying

conduct in an indictment to satisfy the specification without a prior conviction. As applied to

Frierson, this amendment greatly enhanced his potential punishment by subjecting him to the

indefinite sentencing found in R.C. 2971.03 whereas he was not subject to an enhanced sentence

prior to the amendment. Therefore, we find that amended R.C. 2971.01(H)(1), as applied to

Frierson, violates the Ex Post Facto Clause of the United States Constitution.

         {¶13} Frierson’s first assignment of error is sustained.

         {¶14} Frierson’s second and third assignments of error are moot.

         II. Confrontation Clause

         {¶15} In his fourth assignment of error, Frierson argues that the use of a Skype call to

present witness testimony violated his right to confrontation and his right to due process in his

first jury trial.
       {¶16} The Sixth Amendment to the United States Constitution provides, “[i]n all criminal

prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against

him.” The Confrontation Clause of the Sixth Amendment is made applicable to the states by

the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 59, 2001-Ohio-1290, 752 N.E.2d

904 (2001), fn. 4. Consequently, this constitutional right applies to both federal and state

prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution

provides no greater right of confrontation than the Sixth Amendment.        State v. Arnold, 126

Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.

       {¶17} However, the United States Supreme Court has held that although “the

Confrontation Clause reflects a preference for face-to-face confrontation at trial,” that

“preference must occasionally give way to considerations of public policy and the necessities of

the case.” Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

       {¶18} In holding that the right to confrontation is not absolute, the court detailed a

number of important reasons for that right, including (1) the giving of testimony under oath, (2)

the opportunity for cross-examination, (3) the ability of the fact finder to observe demeanor

evidence, and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant.

Id. at 845-846; State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14.

       {¶19} “The central concern of the Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.” Craig at 845.

       {¶20} In Marcinick, this court utilized the two-part analysis from Craig to determine

whether the admission of testimony via teleconference at trial violated the defendant’s right of

confrontation. This court held:
       To qualify as an exception, the procedure must (1) be justified, on a case-specific
       finding, based on important state interests, public policies, or necessities of the
       case and (2) must satisfy the other three elements of confrontation — oath,
       cross-examination, and observation of the witness’s demeanor.

Marcinick at ¶ 18, citing Harrell v. State, 709 So.2d 1364, 1369 (Fla.App.1998), citing Craig at

849-851.

       {¶21} Applying the Craig analysis, this court found in Marcinick that the

teleconferencing testimony of a social worker witness who was out of the country, did not violate

the defendant’s right to confrontation because the state demonstrated that the witness was

unavailable, established the admissibility of the testimony and the two-way video link preserved

the reliability elements of confrontation. Id. at ¶ 22.

       {¶22} In State v. Gay, 8th Dist. Cuyahoga No. 101345, 2015-Ohio-524, we rejected a

confrontation clause challenge to three out-of-state victims who testified via Skype where the

state demonstrated the witnesses’ unavailability, the defendant did not object and the witnesses

were subject to cross-examination and observed by both the defendant and the jury throughout

their testimony.

       {¶23} In State v. Oliver, 8th Dist. Cuyahoga No. 106305, 2018-Ohio-3667, we upheld the

use of Skype testimony for an out-of-state witness who was providing care for a liver

transplant/dialysis patient but found that the trial court erred in allowing a second witness to

testify via Skype where that witness was not unavailable to testify in person but rather would

have been merely inconvenienced.         We found that although the reliability elements of

confrontation had been satisfied for that witness the unavailability threshold was not met by mere

inconvenience.

       {¶24} In this instance, Frierson does not argue that the reliability elements of

confrontation set forth in Marcinick were not satisfied but instead asserts that the state failed to
establish the witness’s unavailability.    The record reflects that C.C., the victim of the rape

charged in count four, had been deported from the United States in 2002. The state introduced

deportation records pertaining to C.C. that reflected that she was prohibited from entering the

United States “[a]t any time because you have been found inadmissible or excludable under

Section 212 of the Act, or deportable under Section 241 or 237 of the Act, and ordered deported

or removed from the United States, and you have been convicted of a crime designated as an

aggravated felony.” An investigator with the CODIS unit of the Cuyahoga County Prosecutor’s

office testified that their office reached out to immigration officials to arrange to have C.C. return

to the United States for trial but that those efforts were unsuccessful. Frierson correctly points

out that the prosecutor’s office could have sought a Significant Public Benefit Parole through

ICE to allow C.C. leave to return to the United States for trial. However, Frierson did not raise

this option during the extensive pretrial hearings conducted by the trial court concerning C.C.’s

availability to testify and the appropriateness of the Skype connection for trial. Under these

circumstances we cannot say that the trial court erred in finding C.C. to be unavailable.

       {¶25} Frierson’s fourth assignment of error is overruled.

       III. Allied Offenses

       {¶26} In his fifth assignment of error, Frierson argues that the trial court erred in finding

that his convictions for rape and kidnapping in counts two and three did not merge as allied

offenses. Contrary to the state’s argument, this issue was raised and contested by Frierson’s

counsel prior to sentencing.

       {¶27} The testimony at trial established that Frierson approached the victim, L.C., on the

street and forced her down a nearby alleyway at gunpoint where he forced L.C. to remove her
clothes and then raped her.     L.C. was released immediately following the rape.   The trial court

held that the offenses did not merge because L.C. was removed from public view and isolated.

       {¶28} R.C. 2941.25(A) allows only a single conviction for conduct that constitutes “allied

offenses of similar import.” Pursuant to R.C. 2941.25(B), a defendant charged with multiple

offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct

constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with separate animus.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 13, citing State v. Moss, 69

Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).

       {¶29} In Ruff, the Ohio Supreme Court recently clarified the test a trial court and a

reviewing court must employ in determining whether offenses are allied offenses that merge into

a single conviction, stating:

       When the defendant’s conduct constitutes a single offense, the defendant may be

       convicted and punished only for that offense. When the conduct supports more

       than one offense, however, a court must conduct an analysis of allied offenses of

       similar import to determine whether the offenses merge or whether the defendant

       may be convicted of separate offenses. R.C. 2941.25(B).

       A trial court and the reviewing court on appeal when considering whether there

       are allied offenses that merge into a single conviction under R.C. 2941.25(A)

       must first take into account the conduct of the defendant. In other words, how

       were the offenses committed? If any of the following is true, the offenses cannot

       merge and the defendant may be convicted and sentenced for multiple offenses (1)

       the offenses are dissimilar in import or significance — in other words, each
        offense caused separate, identifiable harm; (2) the offenses were committed

        separately, and (3) the offenses were committed with separate animus or

        motivation.

        At its heart, the allied offense analysis is dependent upon the facts of a case
        because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial or
        during a plea or sentencing hearing will reveal whether the offenses have similar
        import. When a defendant’s conduct victimizes more than one person, the harm
        for each person is separate and distinct, and therefore, the defendant can be
        convicted of multiple counts. Also, a defendant’s conduct that constitutes two or
        more offenses against a single victim can support multiple convictions if the harm
        that results from each offense is separate and identifiable from the harm of the
        other offense. We therefore hold that two or more offenses of dissimilar import
        exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct
        constitutes offenses involving separate victims or if the harm that results from
        each offense is separate and identifiable.

Id. at ¶ 24-26.

        {¶30} In determining if two or more offenses were committed with a separate animus this

court in State v. Bailey, 8th Dist. Cuyahoga No. 100993, 2014-Ohio-4684, stated:

        [T]he issue of whether two offenses are allied depends not only on whether the

        two crimes were committed in the same act, but also with a single state of mind.

        The Ohio Supreme Court has defined the term “animus” to mean “purpose or,

        more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397

        N.E.2d 1345 (1979). Because animus is often difficult to prove directly, it may

        be inferred from the surrounding circumstances.          When “an individual’s

        immediate motive involves the commission of one offense, but in the course of

        committing that crime he must, a priori, commit another, then he may well

        possess but a single animus, and in that event may be convicted of only one

        crime.” Id.
        Thus, when determining whether two offenses were committed with a separate
        animus, the court must consider (1) whether the first offense was merely
        incidental to the second offense or whether the defendant’s conduct in the first
        offense demonstrated a significance independent of the second, and (2) whether
        the defendant’s conduct in the first offense subjected the victim to a substantial
        increase in the risk of harm apart from that involved in the second offense. State v.
        Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912, ¶ 17.

Id. at ¶ 34-35.

        {¶31} With respect to the offenses of rape and kidnapping, the Supreme Court of Ohio

has acknowledged that “implicit within every forcible rape * * * is a kidnapping” because the

victim’s liberty is restrained during the act of forcible rape.            State v. Asadi-Ousley,

2017-Ohio-7252, 102 N.E.3d 52, ¶ 38 (8th Dist.), citing Logan at 130. In Logan, the court

provided the following guidelines for determining whether kidnapping and another offense are

allied offenses that should merge prior to sentencing, stating:

        (a) 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

        sufficient to support separate convictions;

        (b) Where the asportation or restraint of the victim subjects the victim to a
        substantial increase in risk of harm separate and apart from that involved in the
        underlying crime, there exists a separate animus as to each offense sufficient to
        support separate convictions.

Logan at syllabus.

        {¶32} Applying these guidelines, the Ohio Supreme Court held in Logan that the

offender’s conduct in forcing the victim into an alley before raping her at knife point was

committed without a separate animus. The court found that the movement was slight, the
detention brief and the victim was released immediately after the commission of the underlying

crime, compelling the court’s conclusion that the kidnapping was incidental to the rape. Id. at

135.   Although Logan predates Ruff, Ohio courts continue to apply the guidelines set forth in

Logan to determine whether kidnapping and other offenses were committed with a separate

animus, in accordance with the third prong of the Ruff test.    State v. Lundy, 8th Dist. Cuyahoga

No. 105117, 2017-Ohio-9155, ¶ 26.

        {¶33} We find State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, to be

illustrative in this case.   In Echols, victim K.C. was walking home late at night.   As she passed

a large tree or shrub near East 93rd Street and Woodland Avenue, “Echols jumped out from the

tree” and came up behind her. Echols held a knife to her throat and threatened her before

moving her from the sidewalk to behind the tree and then raping her. Another attack occurred

approximately five years later, involving a different victim.     Victim M.M. was walking home

when a car pulled up and Echols told her to get into the car or he would hurt her. She complied.

 She was hit in the head with a brick and raped.

        {¶34} On appeal, Echols argued that each rape conviction should have merged with each

kidnapping conviction.       Relying on Ruff and Logan, we found that the asportation of victim one

was slight, stating:

        Victim one was moved from the sidewalk to behind a tree next to the sidewalk.
        There was no increased risk of harm associated with this movement apart from
        that associated with the sexual assault. This movement was done for the purpose
        of raping [victim one] with no separate, identifiable harm. The movement was
        done in conjunction with the rape, and was not separated by any significant length
        of time or distance.

Id. at ¶ 38.
       {¶35} We concluded that because “the movement was slight, occurred close in time to the

rape, and was done solely to facilitate the rape[,] the trial court erred when it failed to merge the

rape and kidnapping counts related to [victim one].” Echols at ¶ 39.

       {¶36} We contrasted victim K.C.’s movement with the movement of victim M.M., who

was abducted “from the bus stop.” With victim M.M., the defendant forced her to get into his

vehicle, hit her with a brick once in the car and drove her away from the area. We found that

the “asportation of [victim two] constituted a separate crime for which [defendant] may be

separately punished.” Echols at ¶ 40.

       {¶37} Similarly, in State v. Asadi-Ousley, 2017-Ohio-7252, 102 N.E.3d 52 (8th Dist.), we

considered asportation facts nearly identical to those of the present case. In Asadi-Ousley, the

victim was moved from the sidewalk to a nearby alleyway that was not far from where the victim

had been walking.    This court concluded that the restraint of the victim was not prolonged, nor

the movement substantial enough to demonstrate a separate animus for the kidnapping and the

subsequent rape. However, despite the limited asportation, the court in Asadi-Ousley found that

the rape and kidnapping charges did not merge as allied offenses because the victim was knocked

unconscious by a blow delivered to the back of her head during her movement into the alleyway.

 Id. at ¶ 52. Therefore, the panel in Asadi-Ousley found that the victim had been subjected to

an increased risk of harm that was separate and apart from that involved in the underlying rape

such that the kidnapping offense ceased to be incidental to the rape.

       {¶38} We find the facts on this case to be controlled by Asadi-Ousley, Echols and Logan.

Because the movement of L.C. was slight, occurred close in time to the rape and was done solely

to facilitate the rape we find that the trial court erred when it failed to merge the rape and

kidnapping convictions in counts two and three.
       {¶39} Frierson’s fifth assignment of error is sustained.

       {¶40} The judgment of the trial court is reversed.

       {¶41} We vacate Frierson’s convictions on the sexually violent predator specifications as

well as his sentences on all three of the underlying counts.

       {¶42} Case remanded for merger of counts two and three and resentencing consistent

with this opinion.

       It is ordered that appellant recover of appellee the 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 Cuyahoga County

Court of Common Pleas to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


_____________________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
