[Cite as State v. Woodson, 2011-Ohio-2796.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                           JOURNAL ENTRY AND OPINION
                                   No. 95852



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               DARREN WOODSON
                                                     DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-540104

        BEFORE:           E. Gallagher, J., Sweeney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                        June 9, 2011
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 ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Oscar E. Albores
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

     {¶ 1} Darren Woodson (“Appellant”) appeals from his convictions for

kidnapping and domestic violence entered on September 28, 2010, in the

Cuyahoga County Court of Common Pleas.          Appellant argues that the

evidence presented at his bench trial was insufficient as a matter of law to

support his kidnapping conviction and that the trial court at sentencing did

not properly consider the purposes and principles of felony sentencing

contained in R.C. 2929.11 or the seriousness and recidivism factors in R.C.
                                     3

2929.12. For the following reasons, we affirm.

      {¶ 2} Appellant was indicted on August 2, 2010 with kidnapping in

violation of R.C. 2905.01(A)(3) (Count 1) and domestic violence in violation of

R.C. 2919.25(A) (Count 2). Appellant pled not guilty and his case proceeded

to a bench trial on September 28, 2010.

      {¶ 3} At trial, Jatoya Greathouse (“Greathouse”) testified that on the

morning of July 15, 2010, appellant called her and requested that she drive

him to see his parole officer.   Appellant and Greathouse had known each

other for three and a half years and share a two-year-old daughter. Despite

the existence of a restraining order in her favor that prevented the appellant

from contact with Greathouse, she agreed to give him a ride. Greathouse

drove to appellant’s grandmother’s house at 1416 East 84th Street, Cleveland,

Ohio, where appellant had been living since she and appellant had separated.

 Appellant was on the porch with a female friend.           Also present was

appellant’s cousin, Cleveland Frazier.

      {¶ 4} Appellant entered Greathouse’s car and they began arguing over

the female friend. Appellant exited the car with Greathouse’s cell phone for

the purpose of calling another male with whom he believed Greathouse was

romantically involved. Greathouse also exited her car and a struggle over

the cell phone then ensued between herself and the appellant. Greathouse
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stands 5’4” and weighs 125 pounds while appellant is 6’1” and weighs 160

pounds. During the struggle over the phone, appellant overpowered

Greathouse and held her up against a car that was parked in the driveway of

the home. Greathouse held onto appellant’s pants and was eventually able

to knock the cell phone out of his hand.        Appellant then began to choke

Greathouse with two hands around her neck while she was pressed against

the car.    Greathouse tried to free herself but was unable to do so.

Eventually, Cleveland Frazier intervened and he was able to pull the

appellant away from Greathouse.

      {¶ 5} Greathouse testified that once they were separated, the appellant

approached her car for the purpose of taking her keys. Greathouse testified

that a second struggle occurred inside the car where appellant, sitting in the

driver’s seat, again choked her with two hands while she was in the

passenger seat.    Appellant eventually released Greathouse and, armed with

a   small   foot-long   souvenir   baseball   bat,   she   fled   into   appellant’s

grandmother’s house to use the home phone to call 911. She testified that

she was unable to use her own cell phone to call 911.

      {¶ 6} While she was in the process of calling 911 with the home phone,

the appellant entered the house, knocked her down and into a chair and again

began to choke her. Greathouse struck appellant in the head with the house
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phone and, with the assistance of Frazier, she was able to get appellant off of

her.   Frazier and the appellant exited the house and Greathouse locked

herself inside the home until police arrived at the scene.

       {¶ 7} Cleveland Frazier testified that he witnessed the appellant choke

Greathouse outside of the home and also witnessed the latter choking episode

inside of the home.     His version of the altercation did not include any

choking inside of the car, however.

       {¶ 8} The State’s third, and final, witness, Tiana Lewis, arrived on the

scene midway through the altercation and saw the appellant and Greathouse

“tussling.”   She observed Greathouse enter the house and also observed

appellant choke her until she and Frazier assisted in pulling the appellant off

of Greathouse.    Finally, appellant testified on his own behalf and denied

choking Greathouse at any point during the altercation.

       {¶ 9} At the conclusion of the State’s case, the defense made a motion

for a Rule 29 judgment of acquittal.        The trial court denied appellant’s

motion. Appellant renewed his Rule 29 motion at the close of the trial. The

trial court again denied the motion and returned a guilty verdict as to both

counts. Appellant was sentenced to three years on Count 1 and one and a

half years on Count 2 to run consecutive to one another. Appellant was also

advised of a five years mandatory period of postrelease control. It is from
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this judgment that appellant presently appeals.

      {¶ 10} In his first assignment of error, appellant argues that the trial

court erred in failing to grant his Rule 29 motion for acquittal because the

evidence produced by the State at trial was insufficient as a matter of law to

support a guilty verdict as to the charge of kidnapping.

      {¶ 11} “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.

 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.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus (superseded by statute and constitutional amendment on other

grounds). A reviewing court is not to assess “whether the state’s evidence is

to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390,

1997-Ohio-52, 678 N.E.2d 541. (Cook, J., concurring.)

      {¶ 12} The elements of the kidnapping offense for which appellant was

convicted are set forth in R.C. 2905.01: “(A) No person, by force, threat, or
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deception, * * * 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: * * * (3) To terrorize, or to inflict serious physical harm on

the victim or another.”

      {¶ 13} Appellant argues that the trial court erred in denying his motion

for acquittal as to the kidnapping charge because the state failed to present

evidence establishing that appellant restrained Greathouse’s liberty. This

court has previously defined the element of “restrain the liberty of the other

person” to mean “to limit one’s freedom of movement in any fashion for any

period of time.” State v. Wingfield (Mar. 7, 1996), Cuyahoga App. No. 69229;

see, also, State v. Walker (Sept. 2, 1998), Medina App. No. 2750-M, (restraint

of liberty does not require prolonged detainment); State v. Messineo (Jan. 6,

1993), Athens App. Nos. 1488 and 1493, (grabbing victim’s arm and shaking

her constituted restraint).

      {¶ 14} “[Furthermore,] [a]n offense under R.C. 2905.01 does not depend

on the manner in which an individual is restrained. * * * Rather, it depends

on whether the restraint ‘is such as to place the victim in the offender’s power

and beyond immediate help, even though temporarily.’ * * * The restraint

‘need not be actual confinement, but may be merely compelling the victim to

stay where he is.’ ”      State v. Mosley, 178 Ohio App.3d 631, 635-636, 899
                                      8

N.E.2d 1021, quoting State v. Wilson (Nov. 2, 2000), Franklin App. No.

99AP-1259, quoting 1974 Committee Comment to R.C. 2905.01.

      {¶ 15} We have previously held that choking can constitute a restraint of

liberty. State v. Ellis, Cuyahoga App. No. 90844, 2008-Ohio-6283, at ¶31,

overruled on other grounds.       Other Ohio courts have similarly treated

instances of choking as kidnapping. See State v. Williamson (Jan. 10, 1994),

Clermont App. No. CA93-04-034; State v. Snodgrass (Oct. 26, 1994), Wayne

App. No. 2879.

      {¶ 16} Similarly, in the instant matter, viewing the evidence in a light

most favorable to the State, we find that the State presented sufficient

evidence of kidnapping.      Greathouse testified that while being choked

against a car by appellant she tried to free herself but could not. Additionally,

when Greathouse sought to call 911 for help, appellant pursued her into the

house, knocked her into a chair, and choked her. His actions restrained her

liberty and prevented her from calling authorities for help. Furthermore,

though not addressed by appellant, we note that the purpose to terrorize, as

required by R.C. 2905.01(A)(3), is satisfied by the act of choking as we

previously held in State v. Wingfield (Mar. 7, 1996), Cuyahoga App. No.

69229.

      {¶ 17} Accordingly, we conclude this evidence, if believed, would
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convince the average mind of the defendant’s guilt of kidnapping beyond a

reasonable doubt. Therefore, the appellant’s first assignment of error is

overruled.

      {¶ 18} Appellant’s second assignment of error asserts that the trial court

at sentencing failed to properly consider the purposes and principles of felony

sentencing contained in R.C. 2929.11 or the seriousness and recidivism

factors of R.C. 2929.12.

      {¶ 19} This court has recognized that we review felony sentences using

the Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124;            State v. Brunning, Cuyahoga App. No. 95376,

2011-Ohio-1936.     In Kalish, the Ohio Supreme Court applied a two-prong

approach to appellate review of felony sentences. Appellate courts must first

“examine the sentencing court’s compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is

clearly and convincingly contrary to law.” Kalish at ¶4. If this first prong is

satisfied,   then   we     review   the     trial   court’s   decision   under   an

abuse-of-discretion standard. Id. at ¶4 and 19.

      {¶ 20} In the first step of our analysis, we review whether the sentence

is contrary to law as required by R.C. 2953.08(G). “[T]rial courts have full

discretion to impose a prison sentence within the statutory range and are no
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longer required to make findings and give reasons for imposing maximum,

consecutive or more than the minimum sentence.” Id. at ¶11, citing State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶100. The Kalish

court    declared   that   although   Foster    eliminated   mandatory    judicial

fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a

result, the trial court must still consider these statutes when imposing a

sentence. Id.

        {¶ 21} R.C. 2929.11(A) provides that:

        {¶ 22} “A court that sentences an offender for a felony shall be guided by

the overriding purposes of felony sentencing[,] * * * to protect the public from

future crime by the offender and others and to punish the offender. To

achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the

offense, the public, or both.”

        {¶ 23} R.C. 2929.12 provides a nonexhaustive list of factors a trial court

must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses.

        {¶ 24} The Kalish court also noted that R.C. 2929.11 and 2929.12 are

not fact-finding statutes like R.C. 2929.14.      Kalish at ¶17.    Rather, they
                                      11

“serve as an overarching guide for trial judges to consider in fashioning an

appropriate sentence.” Id. Thus, “[i]n considering these statutes in light of

Foster, the trial court has full discretion to determine whether the sentence

satisfies the overriding purposes of Ohio’s sentencing structure.” Id.

       {¶ 25} In the instant case, we do not find appellant’s sentence to be

contrary to law. The trial court sentenced appellant to consecutive sentences

within the permissible statutory range for his convictions. In the sentencing

journal entry, the trial court acknowledged that it had considered all factors

of law and found that prison was consistent with the purposes of R.C.

2929.11. On these facts, we cannot conclude that his sentence is contrary to

law.

       {¶ 26} Having satisfied the first step, we next consider whether the trial

court abused its discretion. Kalish at ¶4 and 19. An abuse of discretion is

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Id. at ¶19, quoting Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.

Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

       {¶ 27} The trial court did not abuse its discretion in imposing a four and

a half year prison sentence in the present case.       The trial court allowed

appellant and his counsel to advocate a lighter sentence. Appellant argued
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that his legal troubles arose solely from interactions with Ms. Greathouse.

The court heard from Ms. Greathouse who feared that if appellant was

quickly released he would threaten her family.                       The court noted that

appellant’s conduct was so serious that a member of his own family and

household felt compelled to testify truthfully against him. We find nothing

in the record to suggest that the trial court’s decision was unreasonable,

arbitrary, or unconscionable. Accordingly, appellant’s second assignment of

error is overruled.

       {¶ 28} The judgment of the trial court is affirmed.

       It is ordered that appellee recover of 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.




EILEEN A. GALLAGHER, JUDGE
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JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
