[Cite as State v. Terry, 2015-Ohio-3847.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellee,               :             No. 15AP-176
                                                              (C.P.C. No. 13CR-5678)
v.                                                 :             No. 15AP-178
                                                              (C.P.C. No. 13CR-6528)
Donald R. Terry, Jr.,                              :
                                                        (ACCELERATED CALENDAR)
                 Defendant-Appellant.              :



                                            D E C I S I O N

                                   Rendered on September 22, 2015


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Barnhart Law Office LLC, and Robert B. Barnhart, for
                 appellant.

                  APPEALS from the Franklin County Court of Common Pleas

SADLER, J.
        {¶ 1} Defendant-appellant, Donald R. Terry, Jr., appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of rape and kidnapping. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 12, 2013, appellant joined his co-defendant as he walked the
victim home from a get together at the co-defendant's home. When the victim was
around the corner from her residence, appellant grabbed her and forcibly removed her
from that location to a dark, open garage. Appellant and his co-defendant held the victim
against a car while appellant vaginally and anally raped her.
Nos. 15AP-176 and 15AP-178                                                                      2


           {¶ 3} On October 25, 2013, a Franklin County Grand Jury indicted appellant on
two counts of rape, a first-degree felony, in violation of R.C. 2907.02. On December 13,
2013, the grand jury indicted appellant on one count of kidnapping, a felony in the first
degree, in violation of R.C. 2907.01, with a sexual motivation specification under R.C.
2941.147. All the charges arise out of the September 12, 2013 incident.
           {¶ 4} On February 23, 2015, appellant pleaded guilty to kidnapping and one
count of rape.1 The trial court conducted a sentencing hearing on March 5, 2015. At the
hearing, appellant moved the court to merge the two counts for purposes of sentencing.
Plaintiff-appellee, State of Ohio, opposed the motion. The trial court refused to merge the
counts and sentenced appellant to consecutive prison terms of ten years for rape and
three years for kidnapping. On March 9, 2015, the trial court issued a final judgment.
           {¶ 5} Appellant filed a timely notice of appeal to this court on March 10, 2015.
II. ASSIGNMENT OF ERROR
           {¶ 6} Appellant asserts a single assignment of error:
                   The trial court erred when it consecutively sentenced
                   Appellant on charges of Kidnapping and Rape after his guilty
                   plea.

III. STANDARD OF REVIEW
           {¶ 7} "In reviewing a trial court's determination of whether a defendant's offenses
should merge pursuant to the multiple counts statute, the Supreme Court of Ohio has
determined a reviewing court should review the trial court's R.C. 2941.25 determination
de novo." State v. S.S., 10th Dist. No. 13AP-1060, 2014-Ohio-5352, ¶ 28, citing State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. " 'Appellate courts apply the law to
the facts of individual cases to make a legal determination as to whether R.C. 2941.25
allows multiple convictions. That facts are involved in the analysis does not make the
issue a question of fact deserving of deference to a trial court.' " Id., quoting Williams at
¶ 25.




1   A jury found appellant's co-defendant guilty of kidnapping and complicity to commit rape.
Nos. 15AP-176 and 15AP-178                                                                 3


IV. LEGAL ANALYSIS
       {¶ 8} Appellant's assignment of error arguably challenges both the trial court's
decision to sentence appellant to consecutive terms of imprisonment and the trial court's
refusal to merge the counts of rape and kidnapping. However, the only argument raised
in appellant's brief is that the trial court violated R.C. 2941.25 when it refused to merge
the counts of rape and kidnapping and convicted him of both offenses. Appellant makes
no argument in his brief that his sentence violates R.C. 2929.14(C)(4). Accordingly, we
will address appellant's assignment of error under R.C. 2941.25, Ohio's multiple counts
statute.
       {¶ 9} R.C. 2941.25 reads as follows:
              (A) Where the same conduct by defendant can be construed
              to constitute two or more allied offenses of similar import, the
              indictment or information may contain counts for all such
              offenses, but the defendant may be convicted of only one.

              (B) Where the defendant's conduct constitutes two or more
              offenses of dissimilar import, or where his conduct results in
              two or more offenses of the same or similar kind committed
              separately or with a separate animus as to each, the
              indictment or information may contain counts for all such
              offenses, and the defendant may be convicted of all of them.

       {¶ 10} The merger analysis adopted by the Supreme Court of Ohio in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, requires a court to ask whether "multiple
offenses can be committed by the same conduct" and "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, ¶ 50. If the
answer to both questions is yes, the court must merge the allied offenses prior to
sentencing. Id. "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." (Emphasis sic.) Id. at ¶ 51. "These three
bars to merger are disjunctive." State v. Rivera, 10th Dist. No. 10AP-945, 2012-Ohio-
1915, ¶ 54, citing State v. Bickerstaff, 10 Ohio St.3d 62 (1984). It is "[t]he defendant
[who] has the burden of proving at the sentencing hearing that he is entitled to merger
Nos. 15AP-176 and 15AP-178                                                                4


pursuant to R.C. 2941.25." State v. Vargas, 10th Dist. No. 12AP-692, 2014-Ohio-843,
¶ 17, citing State v. Cochran, 10th Dist. No. 11AP-408, 2012-Ohio-5899, ¶ 60, citing State
v. Mughni, 33 Ohio St.3d 65, 67 (1987).
       {¶ 11} The offense of kidnapping is defined in R.C. 2905.01, in relevant part, as
follows:
              (A) No person, by force, threat, or 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:

              ***

              (4) To engage in sexual activity, as defined in section 2907.01
              of the Revised Code, with the victim against the victim's will.

       {¶ 12} A perpetrator necessarily restrains the victim's liberty in order to forcibly
engage in sexual activity with the victim against the victim's will. State v. Logan, 60 Ohio
St.2d 126, 130 (1979) ("implicit within every forcible rape is a kidnapping").           In
determining whether kidnapping and rape were committed with a separate animus, the
Supreme Court in Logan adopted the following guidelines:
              (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.

Id. at syllabus.
       {¶ 13} In State v. Moore, 13 Ohio App.3d 226 (10th Dist.1983), this court affirmed
a trial court's decision to convict the defendant of both kidnapping and rape under similar
facts to those presented herein. In Moore, the offender forcibly removed the victim, at
Nos. 15AP-176 and 15AP-178                                                              5


knifepoint, from the bus stop and forced her to walk approximately one block to a shed.
The asportation of the victim lasted less than five minutes. The offender then forced her
to enter the shed and raped her.       The trial court refused to merge the counts of
kidnapping and rape and convicted appellant of both. On appeal, the issue for this court
was whether the two offenses were committed with a separate animus as to each. The
relevant question under Logan was "whether 'the movement [of the victim] is substantial
so as to demonstrate a significant independence of the other offense.' " Moore at 228,
quoting Logan at paragraph two of the syllabus. Applying the Logan guidelines to the
facts of the case, this court found that there was sufficient asportation of the victim to
constitute conduct separate from the actual commission of the rape itself. Id.
       {¶ 14} Here, the asportation of the victim was similar to that of the victim in
Moore. At appellant's plea hearing, the prosecutor set forth the factual background of the
case as follows:
              [W]hen the victim was around the corner from her residence,
              the defendant grabbed ahold of her. As she indicated in her
              testimony, he forcefully took her to an area of an apartment
              with steps.

              However, he changed his mind and drug her into a dark, open
              garage where he did hold her down against a car. He forced
              vaginal intercourse as well as anal intercourse on her against
              her will.

(Feb. 23, 2015 Tr. 19-20.)
       {¶ 15} At the sentencing hearing, the trial court set forth the factual basis for
refusing to merge the two counts:
              The Court makes the finding here that there was not a single
              act. There wasn't a single act committed with a single state of
              mind. The facts read into the record indicate that she was
              dragged for some period of time. It wasn't seconds.

              ***

              [B]ut the bottom line is that it took -- it wasn't seconds where
              somebody was snatched into a garage and held against their
              will. This happened over a period of minutes from a location -
              - one location to another location.
Nos. 15AP-176 and 15AP-178                                                              6


              So the restraint of movement of the victim was not merely
              incidental to the kidnapping. The restraint was prolonged.
              Confinement was secretive into a dark garage. The movement
              was substantial from one location to another.

              [T]here was a substantial increase in the risk of harm to her
              by forcibly removing her into the garage. It was separate and
              apart from the force used in the heinous crime of rape.

              * * * So I find there was a separate animus, separate conduct.
              The restraint was prolonged. And applying that criteria to this
              case, I find that they do not merge. They're separate crimes.

(Feb. 23, 2015 Tr. 31-33.)
       {¶ 16} The record supports a finding that appellant dragged the victim for a period
of minutes from an area "around the corner from her residence" to an "apartment with
steps." The trial court noted that appellant "couldn't get her through the doorway, and
she was kicking and put up a struggle." (Feb. 23, 2015 Tr. 19; Mar. 5, 2015 Tr. 25.)
Appellant "changed his mind" and then "drug her down the steps and into the garage."
(Feb. 23, 2015 Tr. 20; Mar. 5, 2015 Tr. 25.) The rape subsequently took place inside the
garage. Thus, the record shows that the movement of the victim prior to the rape,
although not long in duration, was sufficient to constitute conduct separate from the
actual commission of the rape itself. The asportation of the victim from the place where
she was found to the place where the rape occurred was not merely incidental to the rape.
Applying the Logan guidelines to the facts of this case, we find that the rape and
kidnapping involved separate conduct and a separate animus as to each offense. Moore.
See also State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶ 118 (the evidence supports
multiple convictions for rape and kidnapping where defendant abducted the victim as she
was walking home and then took her to the empty apartment at some other location
where he raped and killed her); State v. Zanders, 8th Dist. No. 99146, 2013-Ohio-3619,
¶ 29 (where the record showed that the defendant "dragged the victim by the back of her
hair from a pay phone across the street and then through an open field to a secluded
'cubbyhole' in the rear yard behind a building. [The] restraint and movement was not
incidental to the rape").
Nos. 15AP-176 and 15AP-178                                                                 7


       {¶ 17} The evidence further shows that the victim was "kicking and put up a
struggle" as appellant forcibly dragged her from one location to another. (Mar. 5, 2015 Tr.
25.) The trial court also noted that the victim successfully resisted appellant's efforts to
force her through a doorway. This conduct subjected the victim to a substantial increase
in the risk of harm separate and apart from that involved in the rape itself, and it is
sufficient to support convictions for both rape and kidnapping. See, e.g., State v. Houser,
8th Dist. No. 69639 (May 30, 1996) (defendant's conduct in forcibly abducting victim and
transporting her from a public telephone, across Madison Avenue, and up a flight of stairs
into defendant-appellant's apartment is violent conduct "separate and distinct from the
violent actions associated with the actual rapes"); State v. Lawrence, 1st Dist. No. C-
840964 (Oct. 9, 1985) ("the removal (asportation) of the victim by manhandling her in a
violent, overpowering way obviously subjected the victim to a substantial increase in risk
of harm, separate and apart from the risk created by the rape [and] falls within part (b) of
the Logan guidelines").
       {¶ 18} Appellant relies on the decision of this court in State v. Hogan, 10th Dist.
No. 09AP-1182, 2010-Ohio-3385, in support of his merger argument. In Hogan, as the
victim was walking home a man approached her from behind, "threatened her with a
weapon and told her 'don't look at my face or I [will] kill you.' " Id. at ¶ 17. The man then
grabbed the victim and "forced [her] into a wooded area" where he sexually assaulted her.
Id. at ¶ 2. The trial court refused to merge the convictions for purposes of sentencing.
This court reversed the judgment of the trial court stating that R.C. 2941.25 "barred [the
defendant's] being convicted of both the sexual assaults and the kidnapping" because the
incident "was not of long duration. All of the restraint and removal of [the victim] was
done to expedite the sexual assault," and the trial testimony indicated "no other animus."
Id. at ¶ 49.
       {¶ 19} In this case, the asportation of the victim was more substantial than it was
in Hogan and closer to the fact pattern in Moore. Here, as in the Moore case, the victim
was forcibly removed from the area where she was found to another area and then forced
to enter an unoccupied structure where the rape occurred. In Hogan, the victim was
simply "forced into a wooded area" where the rape occurred. Id. at ¶ 2. See Logan at 135
("Secret confinement, such as in an abandoned building or nontrafficked area, without the
Nos. 15AP-176 and 15AP-178                                                                8


showing of any substantial asportation, may, in a given instance, also signify a separate
animus and support a conviction for kidnapping apart from the commission of an
underlying offense."). Moreover, as this court noted in Rivera, "Hogan does not stand for
the proposition that all kidnapping and rape offenses must be merged under all
circumstances, since merger is not required where the offenses were committed
separately or where there is a separate animus." Id. at ¶ 55. On this record, we find that
appellant did not meet his burden of proving that he is entitled to merger pursuant to R.C.
2941.25.
      {¶ 20} Appellant notes in his brief that the trial court refused to merge the counts
of rape and kidnapping in his case but merged the counts of rape and kidnapping in his
co-defendant's case. The trial court expressly rejected appellant's argument at appellant's
sentencing hearing, stating:
             [Court:] I merged his kidnapping case with his rape case, so
             that your lawyer and you understand, because he didn't drag
             her into the garage. He used no force on her whatsoever to
             get her into the garage.

             The testimony was that she felt too many hands on her back
             and restraining her arms and that, therefore, he participated
             in holding her arms. The jury found him guilty of kidnapping
             and complicity in the rape, aiding you.

             The aiding was by holding her arms and letting you help rape
             her. * * * The fact that he restrained her arms and hands was
             incidental to the complicity to the rape. So its completely
             different facts in that case versus your case. That's why I don't
             believe your counts merge.

(Emphasis added.) (Feb. 23, 2015 Tr. 33-34.)
      {¶ 21} The trial court's explanation of its contrasting rulings is consistent with the
logic underlying our decision in Moore. In Moore, this court explained its refusal to
merge Moore's kidnapping and rape convictions, in part, as follows:
             [K]idnapping under R.C. 2905.01(A)(4) consists of one of two
             acts: (1) removing the person from the place where he is found
             for the purpose of sexual activity against his will; or (2)
             restraining the person of his liberty for the purpose of
             engaging in sexual activity against his will. The offense of
             removing the victim from the place where she was found, the
Nos. 15AP-176 and 15AP-178                                                                  9


              bus stop, to the place where the rape was to take place for the
              purpose of committing the rape was completed when the
              victim was forced to enter the shed. While kidnapping still
              took place in the sense of restraining the victim of her liberty
              for the purpose of committing the rape, the initial kidnapping
              was already completed.

Id. at 228.
       {¶ 22} The record reveals that appellant committed kidnapping when he forcibly
removed the victim from the area around the corner from her residence and into the dark
garage for the purpose of engaging in sexual activity with the victim against her will. R.C.
2905.01(A)(4). Though appellant continued to commit the offense of kidnapping when he
and his co-defendant restrained the liberty of the victim as appellant engaged in sexual
activity against her will, the initial kidnapping had already been completed by appellant.
Applying the logic of Moore to the facts of this case, we find that appellant completed the
offense of kidnapping prior to the commission of the rape, and we further find that such
conduct was not "merely incidental" to the subsequent rape of the victim. Logan at
paragraph two of the syllabus. As stated above, the asportation of the victim prior to the
rape was sufficient to constitute conduct separate from the actual commission of the rape
itself, and it substantially increased the risk of harm to the victim, separate and apart from
the risk created by the rape. Because the evidence supports the conclusion that the rape
and the kidnapping involved separate conduct and a separate animus as to each offense,
appellant's conviction of both offenses does not offend R.C. 2941.25.
       {¶ 23} For the foregoing reasons, we hold that the trial court did not err when it
convicted appellant of both rape and kidnapping. Accordingly, appellant's assignment of
error is overruled.
V. CONCLUSION
       {¶ 24} Having overruled appellant's sole assignment of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
                                                                        Judgments affirmed.
                       TYACK and LUPER SCHUSTER, JJ., concur.
                                 _________________
