[Cite as State v. Williams, 2018-Ohio-4261.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




 STATE OF OHIO,                                      :

        Plaintiff-Appellee,                          :         CASE NO. CA2018-02-030

                                                     :              OPINION
     - vs -                                                         10/22/2018
                                                     :

 NATHAN A. WILLIAMS,                                 :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2017-08-1495



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Ave., Hamilton, OH 45011, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Nathan A. Williams, appeals from his conviction in the

Butler County Court of Common Pleas after he pled guilty to single counts of aggravated

burglary and kidnapping. For the reasons outlined below, we affirm.

        {¶ 2} On September 13, 2017, the Butler County Grand Jury returned a multiple-

count indictment charging Williams with, among other offenses, aggravated burglary in

violation of R.C. 2911.11(A)(1), a first-degree felony, and kidnapping in violation of R.C.
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2905.01(A)(2), a second-degree felony. Both charges also included a one-year firearm

specification pursuant to R.C. 2941.141.

       {¶ 3} The charges arose after Williams and an accomplice forced their way into an

apartment while wearing ski masks and brandishing firearms with the intent to commit a

theft offense therein; specifically, to steal money and valuable personal property from the

apartment's tenants. Once inside, Williams and his accomplice threatened at gunpoint the

two individuals located inside, an eight-year-old girl and her 20-year-old aunt.           Upon

confronting the girl and her aunt, Williams and his accomplice, while still wearing ski masks

and brandishing firearms, then duct taped the two victims to a chair, ransacked the

apartment, took into their possession money and valuable personal property located

therein, and fled from the scene.

       {¶ 4} On November 30, 2017, Williams entered into a plea agreement and pled

guilty to the above-named offenses, as well as the accompanying one-year firearm

specification, in exchange for the remaining charges against him being dismissed. After

conducting the necessary Crim.R. 11 plea colloquy, and upon Williams waiving the reading

of a statement of facts by the state, the trial court accepted Williams' guilty plea upon finding

he entered his plea knowingly, intelligently, and voluntarily. The trial court then scheduled

the matter for a sentencing hearing.

       {¶ 5} Prior to sentencing, Williams filed a sentencing memorandum arguing the

offenses of aggravated burglary and kidnapping were allied offenses of similar import that

should be merged for purposes of sentencing. After hearing arguments from both parties,

the trial court disagreed with Williams' claim upon finding that "it's clear to me that the

conduct shows that the offenses were committed separately."               The trial court then

sentenced Williams to serve a total of 11 years in prison and notified Williams that he would

be subject to a mandatory five-year postrelease control term. Williams now appeals from

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the trial court's decision, raising the following single assignment of error for review.

       {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

ENTERING JUDGMENTS OF CONVICTION ON ALLIED OFFENSES OF SIMILAR

IMPORT.

       {¶ 7} In his single assignment of error, Williams argues the trial court erred by failing

to find the offenses of aggravated burglary and kidnapping were allied offenses of similar

import subject to merger for purposes of sentencing. We disagree.

       {¶ 8} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio

App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 states:

              (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.

       {¶ 9} As instructed by the Ohio Supreme Court, in determining whether offenses

are allied offenses of similar import "courts must evaluate three separate factors – the

conduct, the animus, and the import." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

paragraph one of the syllabus. In conducting this analysis, 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. Id. at ¶ 25. The

application of this test "'may result in varying results for the same set of offenses in different

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cases. But different results are permissible, given that the statute instructs courts to

examine a defendant's conduct – an inherently subjective determination.'" Id. at ¶ 32,

quoting State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 52. This court applies a

de novo standard of review in reviewing a trial court's decision as to whether offenses are

allied offenses of similar import subject to merger. State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, ¶ 28.

       {¶ 10} As noted above, Williams pled guilty and was convicted of aggravated

burglary in violation of R.C. 2911.11(A)(1) and kidnapping in violation of R.C. 2905.01(A)(2).

As it relates to the charged offense of aggravated burglary, pursuant to R.C. 2911.11(A)(1),

no person, by force, stealth, or deception shall trespass in an occupied structure when

another person other than an accomplice of the offender is present, with the purpose to

commit in the structure any criminal offense, during which time the offender inflicts, or

attempts or threatens to inflict physical harm on another. On the other hand, as it relates

to a charged offense of kidnapping, pursuant to R.C. 2905.01(A)(2), no person, by force,

threat, or deception shall restrain the liberty of another person to facilitate the commission

of any felony or flight thereafter.

       {¶ 11} Williams argues the offenses of aggravated burglary and kidnapping are allied

offenses subject to merger since any restraint to the victims that occurred by duct taping

them to a chair was "incidental and directly related to" the completion of the aggravated

burglary offense. However, although close in time, the record firmly establishes that each

of the two offenses at issue, aggravated burglary and kidnapping, were committed

separately with separate and identifiable harm to the victims, thereby rendering the offenses

of dissimilar import. This is because, as noted by the Ohio Supreme Court, "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

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results from each offense is separate and identifiable." Ruff, 2015-Ohio-995 at ¶ 26.

       {¶ 12} In this case, as it relates to the aggravated burglary offense, the crime was

complete once Williams and his accomplice forced their way into the apartment while

wearing a ski masks and brandishing firearms with the intent to commit a theft offense

therein; specifically, to steal money and valuable personal property from the apartment's

tenants, during which Williams and his accomplice threatened physical harm to the two

victims located inside. See e.g., State v. McFarland, 8th Dist. Cuyahoga No. 105570, 2018-

Ohio-2067, ¶ 47 ("aggravated burglary occurred when the defendants entered the

apartment complex with the intent to harm" the victim). Thereafter, as it relates to the

kidnapping offense, Williams and his accomplice, while still wearing ski masks and

brandishing firearms, then duct taped the victims to a chair in order to further their efforts in

stealing money and valuable personal property from the apartment's tenants and

subsequently fleeing the scene. Williams' conduct in duct taping the two victims to a chair

was therefore not "incidental and directly related to" the completion of the aggravated

burglary offense as Williams suggests.

       {¶ 13} "As we have previously recognized, if one offense is completed before the

other begins, the offenses are considered separately for sentencing purposes even though

the two offenses may have been committed in close proximity in time." State v. Fields, 12th

Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, ¶ 18, citing State v. Lane, 12th Dist.

Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16. That is clearly the case here for, as the

state aptly notes, "[t]he physical and emotional risk from being 'duct-taped' to a chair, for an

unknown period of time, is separate, distinct, and identifiable from the risk imposed when

masked men enter a home waving guns – for the purpose of committing a theft offense."

We agree with the state's contention.

       {¶ 14} In light of the foregoing, and based on the facts and circumstances of this

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case, because the two offenses were committed separately and created a separate and

identifiable harm to the victims, the trial court did not err by failing to merge Williams'

conviction for aggravated burglary and kidnapping as those offenses were not allied

offenses of similar import subject to merger. Therefore, finding no merit to Williams'

arguments raised herein, Williams' single assignment of error is overruled.

      {¶ 15} Judgment affirmed.


      RINGLAND and HENDRICKSON, JJ., concur.




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