[Cite as State v. Moore, 2011-Ohio-2934.]



          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 96122



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    AKRAM MOORE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-535121

        BEFORE:             Boyle, P.J., Cooney, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                         June 16, 2011
                                           2

ATTORNEY FOR APPELLANT

Elizabeth A. Thomarios
50 Baker Boulevard
Suite 6
Akron, Ohio 44333


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

       {¶ 2} Defendant-appellant, Akram Moore, appeals the sentence he received for his

kidnapping and gross sexual imposition convictions.   He raises two assignments of error for

our review:
                                                3

       {¶ 3} “[1.] The trial court committed plain error by sentencing appellant to

consecutive sentences on the kidnapping and gross sexual imposition charges as they were

allied offenses.

       {¶ 4} “[2.] Appellant’s sentence is contrary to law and the overriding purpose of

felony sentencing.”

       {¶ 5} Finding no merit to his appeal, we affirm.

                                            Procedural History

       {¶ 6} In March 2010, the grand jury indicted Moore on one count of kidnapping, in

violation of R.C. 2905.01(A)(4), with a sexual motivation specification, and four counts of

gross sexual imposition, in violation of R.C. 2907.05(A)(1).

       {¶ 7} Moore pleaded guilty to the indictment as charged, with the exception of the

sexual motivation specification, which the state deleted from the indictment.

       {¶ 8} The trial court sentenced Moore to an aggregate term of six and one-half years

in prison, including five years for kidnapping and 18 months for each of the gross sexual

imposition charges, which were to be served concurrent to one another, but consecutive to the

kidnapping term.      The trial court also notified Moore that he would be subject to five years of

postrelease control upon his release from prison and be labeled a Tier II sex offender.

                                              Allied Offenses
                                               4

       {¶ 9} In his first assignment of error, Moore argues that the trial court erred when it

sentenced him on both the kidnapping and gross sexual imposition convictions because he

claims that they were allied offenses.

       {¶ 10} We normally review the issue of whether two offenses are allied under a de

novo standard of review.     See State v. Young, 2d Dist. No. 23438, 2010-Ohio-5157.         Here,

however, Moore failed to object to the trial court’s sentencing him on both offenses.          We

therefore review it under the plain error standard.      But our review is essentially the same

because “imposition of multiple sentences for allied offenses of similar import is plain error.”

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31.

       {¶ 11} “The double jeopardy clauses of both the United States and Ohio Constitutions

protect ‘an individual against successive punishments as well as successive prosecutions for

the same offense.’    State v. Moore (1996), 110 Ohio App.3d 649, 652, 675 N.E.2d 13

(citations omitted). ‘Ohio’s allied offenses statute, R.C. 2941.25, protects against multiple

punishments for the same criminal conduct in violation of the Double Jeopardy Clauses of the

United States and Ohio Constitutions.’     Id. at 653, 675 N.E.2d 13.”     State v. Lowery, 11th

Dist. No. 2007-T-0085, 2008-Ohio-1896, ¶11.          In the committee comment to R.C. 2941.25,

the drafters explained that “the basic thrust of the section is to prevent ‘shotgun’ convictions.”

       {¶ 12} R.C. 2941.25 provides:
                                               5

       {¶ 13} “(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.

       {¶ 14} “(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.”

       {¶ 15} In the recent Ohio Supreme Court case, State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, the court thoroughly reviewed its “difficult ***

jurisprudence on allied offenses” from 1971 to the present.      See id. at ¶7 - 40.    But most

notably, in Johnson, the Supreme Court finally overruled State v. Rance, 85 Ohio St.3d 632,

1999-Ohio-291, 710 N.E.2d 699, where it had held that courts should compare the statutory

elements in the abstract. Johnson at paragraph one of the syllabus.          The Supreme Court

explained that Rance had ignored the mandates of R.C. 2941.25, “which expressly instructs

courts to consider the offenses at issue in light of the defendant’s conduct.”   Johnson at ¶46.

       {¶ 16} In Johnson, the Supreme Court explained that “whether offenses are allied

offenses of similar import under R.C. 2941.25(A) *** 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.     ***    If the offenses correspond to such a degree that the
                                               6

conduct of the defendant constituting commission of one offense constitutes commission of the

other, then the offenses are of similar import.”   (Internal citations omitted.)   Id. at ¶48.

       {¶ 17} Then, “[i]f 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 (Lanzinger, J., dissenting).

       {¶ 18} “If the answer to both questions is yes, then the offenses are allied offenses of

similar import and will be merged.”    Id. at ¶50.

       {¶ 19} “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.

                                          Application of Johnson

       {¶ 20} R.C. 2905.01(A)(1) sets forth the elements of kidnapping as: “[n]o 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 *** [t]o engage in sexual

activity, as defined in section 2907.01 of the Revised Code, with the victim against the

victim’s will.”
                                              7

         {¶ 21} Gross sexual imposition under R.C. 2907.05(A)(1) provides that “[n]o person

shall have sexual contact with another *** when *** [t]he offender purposely compels the

other person, or one of the other persons, to submit by force or threat of force.”

         {¶ 22} There is no question that kidnapping and gross sexual imposition can be

committed by the same conduct under the first prong set forth in Johnson.              The state

concedes as much.      But the state maintains that the trial court correctly found that the

kidnapping and gross sexual imposition offenses were committed with a separate animus

because Moore first drove the victim to a secluded place, where he then committed the acts of

gross sexual imposition, and restrained her liberty for an hour.

         {¶ 23} The victim wrote a letter to the court, which was read into the record by a

victim’s representative.   The victim explained that before the acts occurred, Moore had been

driving her from his house in Cleveland Heights to her house in Garfield Heights.     She stated,

“[i]nstead of the freeway route we were going to take, we took back roads.       At the stop sign

he turned off the car and molested me.     After about an hour, he drove me the rest of the way

home.”

         {¶ 24} In the presentence investigation report (“PSI”), the offense summary contained

in the Shaker Heights police report, states: “While driving [Jane Doe] home, Moore deviated

from his usual route and began to take back roads.    When they arrived at an intersection, later

identified as the corner of South Park Road and Park Drive, Moore turned the car off and the
                                              8

headlights.”    Moore then committed the acts of gross sexual imposition.         Then, “Moore

turned the car back on and proceeded to drive down Lee Road” to the victim’s home in

Garfield Heights.

       {¶ 25} Over thirty years ago, the Ohio Supreme Court set forth a test to establish

“whether kidnapping and another offense of the same or similar kind [were] committed with a

separate animus as to each pursuant to R.C. 2941.25(B).”        State v. Logan (1979), 60 Ohio

St.2d 126, 397 N.E.2d 1345, syllabus.    The court held:

       {¶ 26} “(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;

       {¶ 27} “(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.

       {¶ 28} In Logan, the Ohio Supreme Court explained:
                                               9

       {¶ 29} “We believe that prolonged restraint without asportation may be as

penologically significant as substantial asportation and, under certain circumstances, will

support a conviction for kidnapping as a separate act or animus from that of rape.

       {¶ 30} “Secret confinement, such as in an abandoned building or nontrafficked area,

without the 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.

       {¶ 31} “The primary issue, however, is whether the restraint or movement of the victim

is merely incidental to a separate underlying crime or, instead, whether it has a significance

independent of the other offense. In the instant case, the restraint and movement of the victim

had no significance apart from facilitating the rape.   The detention was brief, the movement

was slight, and the victim was released immediately following the commission of the rape.

In such circumstances, we cannot say that appellant had a separate animus to commit

kidnapping.”    Id. at 135.

       {¶ 32} In Logan, the victim was accosted at the entrance to an alley and was forced

down the alley, around a corner, and down a flight of stairs, where she was raped.    She was

then immediately released.    Id. at 126-27.   Under these circumstances, the Supreme Court of

Ohio concluded that the detention and asportation were incidental and no separate animus

existed.   Id. at 136-37.
                                             10

       {¶ 33} Moore argues that there was no separate animus because he committed the acts

while he was simply driving the victim to her house, as he had done many other times.           He

maintains, “[t]he normal and most direct way to the victim’s home from Cleveland Heights to

Garfield Heights does not involve the highway, or any major interstate.          Anyone familiar

with Cleveland Heights understands that it is landlocked from any highway access and side

roads are the most convenient and only way of travel to get anywhere.”

       {¶ 34} While we agree with Moore that the interstate may not have been the most

direct route to the victim’s house, he still veered off of his route on Lee Road and into a park

(according to the police report indicating that Moore stopped at the intersection of South Park

Road and Park Drive), where he kept the victim for about an hour, to commit the acts of gross

sexual imposition against her.   Thus, we agree with the trial court that Moore’s driving the

victim to a secluded place was committed with a separate animus separate from the acts of

gross sexual imposition.

       {¶ 35} Accordingly, the trial court did not err, and Moore’s first assignment of error is
overruled.
                                      Maximum Prison Sentence

       {¶ 36} In his second assignment of error, Moore argues that the trial court erred when

it sentenced him to the maximum prison term for kidnapping, five years, and for gross sexual

imposition, 18 months, and ordered them to be served consecutively.        He maintains that the

trial court failed to consider any of the factors in R.C. 2929.12 and 2929.14.   We disagree.
                                               11

          {¶ 37} Appellate courts must apply a two-step approach when reviewing a defendant’s

sentence.     State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4. “First,

they must 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.     If this first prong is satisfied, the trial court’s decision shall be reviewed under an

abuse-of-discretion standard.”     Id.

          {¶ 38} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio

Supreme Court held that trial courts “have full discretion to impose a prison sentence within

the statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.”                   Id. at ¶100.

Indeed, Foster severed those sections of the Revised Code that required trial courts to make

findings of fact before sentencing an offender to maximum or consecutive sentences.           Id. at

paragraphs one and three of the syllabus.     The Supreme Court recently upheld Foster in State

v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.

          {¶ 39} In Kalish, the Supreme Court explained that “[a]lthough Foster eliminated

mandatory judicial fact-finding for upward departures from the minimum, it left intact R.C.

2929.11 and 2929.12.       The trial court must still consider these statutes.”   Id. at ¶13, citing

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.
                                             12

       {¶ 40} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.”          Kalish at ¶17.

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

appropriate sentence.   In considering these statutes in light of Foster, the trial court has full

discretion to determine whether the sentence satisfies the overriding purpose of Ohio’s

sentencing structure.   Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its

discretion in considering whether its sentence complies with the purposes of sentencing.”       Id.

 “Therefore, assuming the trial court has complied with the applicable rules and statutes, the

exercise of its discretion in selecting a sentence within the permissible statutory range is

subject to review for abuse of discretion pursuant to Foster.”   Id.

       {¶ 41} In Kalish, the Supreme Court also made clear that even after Foster, “where the

trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is

presumed that the trial court gave proper consideration to those statutes.”    Id. at fn. 4, citing

State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.

       {¶ 42} R.C. 2929.11(A) provides that when a trial court sentences an offender for a

felony conviction it must be guided by the “overriding purposes of felony sentencing.”

Those purposes are “to protect the public from future crime by the offender and others and to

punish the offender.”    R.C. 2929.11(B) states that a felony sentence “must be reasonably

calculated to achieve the purposes set forth under R.C. 2929.11(A), commensurate with and

not demeaning to the seriousness of the crime and its impact on the victim, and consistent with
                                              13

sentences imposed for similar crimes committed by similar offenders.”         And R.C. 2929.12

sets forth factors concerning the seriousness of the offense and recidivism factors.

       {¶ 43} After reviewing the record in this case, we find that it supports the inference

that the trial court properly considered the factors in R.C. 2929.12 and adhered to the purposes

and principles of sentencing set forth in R.C. 2929.11.

       {¶ 44} At the sentencing hearing, the trial court stated that it considered the documents

provided by defense counsel, establishing that Moore has enrolled himself in counseling,

Moore’s military records and commendations, as well as records from Recovery Resources,

and other letters of support on behalf of Moore.     But the trial court further indicated that it

listened to the victim and the victim’s mother, who both told a “different side of the story.”

The victim and the victim’s mother informed the court of the difficulties the victim has had

since the acts occurred, as well as the difficulty it has had on the entire family.    The court

further explained that just because Moore had a minimal “past criminal history,” the court

could “not get around the nature of the seriousness of the conduct.”       The court also stated

that although Moore was admitting his “mistake,” it appeared that some of the people who

wrote letters on behalf of Moore were blaming the victim, claiming that the acts were “not as

big a deal as everybody [was] making it.”

       {¶ 45} We find, based on the record before us, that the trial court carefully considered

the factors in R.C. 2929.11 and 2929.12 when sentencing Moore.
                                              14

       {¶ 46} Accordingly, Moore’s second assignment of error is overruled.

       Judgment 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.




MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR
