[Cite as State v. Carver, 2011-Ohio-5955.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :      C.A. CASE NO. 24400

vs.                                               :    T.C. CASE NO. 03CR3323

KYLE CARVER                                        :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                 Rendered on the 18th day of November, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422

        Attorneys for Plaintiff-Appellee

Barry W. Wilford, Atty. Reg. No. 0014891, 492 City Park Avenue,
Columbus, OH 43215
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant,              Kyle      Carver,    appeals   from   a   de   novo

resentencing hearing the trial court conducted pursuant to State

v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, in order to

properly impose post release control.
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     {¶ 2} The facts of this case were set forth in our previous

opinion,   State   v.   Carver,   Montgomery    App.   No.   21328,

2008-Ohio-4631, as follows:

     {¶ 3} “{¶ 13} In late August 2003, Carver and ‘M’ were living

together in M's apartment in Dayton. They had met in March or April

of 2003 when both were working for a telecommunications company,

and they began dating in early August. Carver was approximately

forty years old, approximately fourteen years older than M.

     {¶ 4} “{¶ 14} On August 28, 2003, Carver picked up M from work,

and they returned to the apartment. There, M discovered that her

television was missing. Carver told her that he had pawned the

television to get money. According to M, they argued and she later

found a pawn ticket from Don's Pawn Shop in the car. At some point,

Carver pulled out a crack pipe, lit it up, and had M watch him

smoke it. Around 9:00 p.m., Carver left, saying that he was going

to try to make some money to get her television back. Carver later

returned with a cousin, J.R., and Carver and M ‘had a few more

words.’ Carver grabbed M's car keys, which were for a Chevrolet

Cavalier owned by M's mother, and he left. M stated she thought

he had left at approximately 3:00 a.m.

     {¶ 5} “{¶ 15} At approximately 3:00 a.m. on August 29, 2003,

‘B,’ M's mother, was awakened by someone banging on the door to

her apartment. B testified that she initially did not know who
                                                                   3

was at the door and she threatened to call the police if the person

did not leave. However, she then heard the mail slot open and

Carver's voice say, ‘Mom, it's Kyle, I need to talk to you about

[M].’ B let Carver into her apartment.

     {¶ 6} “{¶ 16} After entering, Carver got a glass of water and

sat on the couch in the living room. Carver told B that ‘this isn't

really about [M]’ and he started to unbutton his shirt. B tried

to stand and move away, but Carver grabbed her and pulled her back

down to the couch. B testified that Carver put his hand on her

throat and threatened to strangle her if she screamed or made noise.

Carver continued to undress and told her that ‘he was going to

give [her] what [she] wanted.’ Carver then led B to her bedroom,

where he performed oral sex on her and had vaginal intercourse.

Afterwards, Carver and B returned to the living room so Carver

could smoke a cigarette; B also smoked a cigarette.

     {¶ 7} “{¶ 17} B testified that she thought Carver would leave

at that point. Instead, after approximately twenty minutes, Carver

took B back to her bedroom, where they had vaginal intercourse

again. B stated that she tried to prevent Carver from turning her

over for anal intercourse by putting her legs around him. Carver

then put his fingers in her rectum. Carver and B returned to the

living room for more cigarettes, and Carver began to pull his pants

up. However, he apparently changed his mind and choked B until
                                                                  4

she was almost rendered unconscious. Afterward, Carver dragged

B back to the bedroom and had vaginal intercourse for a third time.

     {¶ 8} “{¶18} Carver again went back to living room. There,

Carver pulled out a crack pipe, lit it, and smoked it. Carver told

B: ‘This is the reason I do stuff like this. I have a habit. This

makes me * * * do the bad things.’ Carver then stated that he had

to go home and tell M. Carver took B's cell phone and her keys

to the Cavalier. Carver started to hand B her cell phone, but then

stated, ‘I'll leave it out there on the dumpster and that'll give

me some time.’ B testified that Carver left at approximately 6:00

a.m. B and M both testified that Carver did not have permission

to use the vehicle.

     {¶ 9} “{¶ 19} After Carver left her apartment, B crawled to

a neighbor's apartment, and the police were called. B was

transported to Good Samaritan Hospital, where she gave a statement

to a sheriff's deputy and a rape kit was completed, primarily by

Julia Rismiller, a registered nurse. Photographs were taken of

B's neck, which was red. Several witnesses testified that B's voice

sounded raspy and hoarse in the hospital.

     {¶ 10} “{¶ 20} According to Mark Squibb of the Miami Valley

Regional Crime Laboratory, spermatozoa and semen were found on

the vaginal and anal swabs. After Carver provided a DNA sample

in February 2005, Squibb identified Carver as the source of the
                                                                         5

semen on the vaginal swab. No DNA analysis was performed on the

anal swab.

     {¶ 11} “{¶ 21} B's car was recovered in September 2003 in

Greensboro, North Carolina, after it was involved in an accident.

M testified that Carver had a son who lived in Greensboro. In 2005,

Carver was ultimately arrested in Pennsylvania and returned to

Ohio.

     {¶ 12} “{¶ 22} Carver did not present any evidence at trial.

However, his counsel asserted during opening statements that Carver

and B had engaged in consensual intercourse. Defense counsel's

cross-examination also emphasized that B was taking several

psychotropic medications at the time of the alleged sexual

assault.”

     {¶ 13} In   2005   Defendant   was   indicted   on   one   count   of

unauthorized use of a motor vehicle, R.C. 2913.03(B), five counts

of rape, R.C. 2907.02(A)(2), one count of gross sexual imposition,

R.C. 2907.05(A)(1), one count of kidnapping, R.C. 2905.01(A)(4),

and one count of felonious assault, R.C. 2903.11(A)(1).         Following

a jury trial, Defendant was found not guilty on four of the rape

charges, and the jury was unable to agree on a verdict on one of

the rape charges and the gross sexual imposition charge, which

resulted in the trial court declaring a mistrial on those offenses.

 Defendant was found guilty of unauthorized use of a motor vehicle,
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kidnapping, and felonious assault.      The trial court sentenced

Defendant to consecutive prison terms of twelve months for

unauthorized use of a motor vehicle, ten years for kidnapping,

and eight years for felonious assault, for a total sentence of

nineteen years.

     {¶ 14} We affirmed Defendant’s conviction and sentence on

direct appeal.    State v. Carver, Montgomery App. No. 21328,

2006-Ohio-5798.   We subsequently granted Defendant’s motion to

reopen his appeal, and once again affirmed his conviction and

sentence.      State   v.   Carver,   Montgomery   App.No.   21328,

2008-Ohio-4631.   At no time in either his initial direct appeal

or in his reopened appeal did Defendant ever raise an allied

offenses issue regarding his kidnapping and felonious assault

convictions.

     {¶ 15} On May 14, 2010, Defendant filed a motion in accordance

with then controlling law, State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, seeking a de novo re-sentencing hearing because

the trial court failed to properly impose post release control.

 The trial court granted Defendant’s motion for resentencing.

On December 1, 2010, Defendant filed a motion to dismiss the

kidnapping charge based upon double jeopardy and the allied

offenses statute, R.C. 2941.25.       The issue Defendant raised

pertained to the relationship between the kidnapping and the rape
                                                                                7

charges, not the kidnapping and the felonious assault charge.

On   December   3,   2010,   the   trial   court   conducted      a    de    novo

resentencing hearing.        The court overruled Defendant’s motion to

dismiss the kidnapping charge, and reimposed the same prison terms

originally imposed.      The court also imposed the appropriate terms

of post release control applicable to each of Defendant’s offenses.

      {¶ 16} Defendant   timely    appealed   to   this   court       from   his

re-sentencing.

      ASSIGNMENT OF ERROR

      {¶ 17} “THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE

OFFENSES OF KIDNAPPING AND FELONIOUS ASSAULT WERE ALLIED OFFENSES

UNDER R.C. § 2941.25, AND MERGED FOR CONVICTION AND SENTENCING

PURPOSES.”

      {¶ 18} In his sole assignment of error, Defendant argues that

the trial court erred in sentencing him for both kidnapping and

felonious assault because those are allied offenses of similar

import that must be merged pursuant to R.C. 2941.25 and the rule

of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

      {¶ 19} Defendant was found guilty of kidnapping in violation

of R.C. 2905.01(A)(4), which provides:

      {¶ 20} “No person, by force, threat, or deception, or, in the

case of a victim under the age of thirteen or mentally incompetent,

by any means, shall remove another from the place where the other
                                                                    8

person is found or restrain the liberty of the other person, for

any of the following purposes:

     {¶ 21} “To engage in sexual activity, as defined in section

2907.01 of the Revised Code, with the victim against the victim’s

will.”

     {¶ 22} Defendant was also found guilty of felonious assault

in violation of R.C. 2903.11(A)(1), which provides:

     {¶ 23} “No person shall knowingly do either of the following:

     {¶ 24} “Cause serious physical harm to another or to another’s

unborn[.]”

     {¶ 25} In discussing allied offense of similar import, we stated

in State v. Freeders, Montgomery App. No. 23952, 2011-Ohio-4871:

     {¶ 26} “{¶ 13} The Double Jeopardy Clause of the United States

Constitution, which applies to the States through the Fourteenth

Amendment prohibits multiple punishments for the same offense.

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10. However,

the Double Jeopardy Clause only prohibits a sentencing court from

prescribing greater punishment than the legislature intended. Id.,

at ¶11. The two-tiered test set forth in R.C. 2941.25, Ohio’s

multiple count statute, resolves both the       constitutional and

state statutory inquiries regarding the General Assembly’s intent

to permit cumulative punishments for the same conduct. Id., at

¶12. However, it is not necessary to      resort to that test when
                                                                    9

the legislature’s intent to impose multiple    punishments is clear

from the language of the statute. Id., at ¶37.

     {¶ 27} “{¶ 14} Ohio’s multiple counts statute, R.C. 2941.25,

provides:

     {¶ 28} “{¶ 15} ‘(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.’

     {¶ 29} “{¶ 16} ‘(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.’

     {¶ 30} “{¶ 17} In State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, the Ohio Supreme Court announced a new test for

determining when offenses are allied offenses of similar import

that must be merged pursuant to R.C. 2941.25. Johnson overruled

the previous test announced in State v. Rance (1999), 85 Ohio St.3d

632, and    held: ‘When determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25,

the conduct of the accused must be considered.’ Id. at syllabus.

The Supreme Court explained its holding at ¶47-51, stating:
                                                                          10

       {¶ 31} “{¶ 18} ‘Under R.C. 2941.25, the court must determine

prior to sentencing whether the offenses were committed by the

same conduct. Thus, the court need not perform any hypothetical

or abstract comparison of the offenses at issue in order to conclude

that the offenses are subject to merger.’

       {¶ 32} “{¶ 19} ‘In determining whether offenses are allied

offenses of similar import under R.C. 2941.25(A), the question

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. Blankenship, 38 Ohio St.3d at

119, 526 N.E.2d 816 (Whiteside, J., concurring) (“It is not

necessary that both crimes are always committed by the same conduct

but, rather, it is sufficient if both offenses can be committed

by the same conduct. It is a matter of possibility, rather than

certainty, that the same conduct will constitute commission of

both offenses.” [Emphasis sic]). If the offenses correspond to

such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other,

then the offenses are of similar import.’

       {¶ 33} “{¶ 20} ‘If 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.”   Brown,   119   Ohio   St.3d   447,
                                                                   11

2008-Ohio-4569,     895   N.E.2d   149,   at   ¶   50   (Lanzinger,

J.,dissenting).’

     {¶ 34} “{¶ 21} ‘If the answer to both questions is yes, then

the offenses are allied offenses of similar import and will be

merged.’

     {¶ 35} “{¶ 22} ‘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.’

     {¶ 36} “{¶ 23} Johnson is a welcome relief from the abstractions

of Rance and is more consistent with R.C. 2941.25 in that the tests

it imposes apply to the conduct in which the defendant actually

engaged. If that conduct can be construed to violate two or more

sections of the criminal code, the offenses involved are allied

offenses of similar import per R.C. 2941.25(A). The offenses must

then be merged unless the conduct in which Defendant engaged was

committed separately or with a separate animus as to each offense.

R.C. 2941.25(B).”

     {¶ 37} Defendant Carver argues that his offenses of kidnapping

and felonious assault are allied offenses of similar import that

must be merged pursuant to R.C. 2941.25, because in placing his

hands around B’s neck and then choking her to the point of
                                                                          12

unconsciousness, he acted for the same purpose, which was to engage

in sexual activity with B.      Therefore, he acted with but a single

animus, and his acts involved the same conduct.

       {¶ 38} We agree with Defendant that, under the rule of State

v. Logan (1979), 60 Ohio St.2d 126, his kidnapping and felonious

assault charges were committed with the same animus, to the extent

that they are limited to engaging in that particular conduct,

because the restraint was merely incidental to the act of choking

B.     However, that was not the only act of restraint B’s conduct

involved.

       {¶ 39} Over the entire three-hour episode, Defendant restrained

B multiple times, all for the purpose of engaging in sexual activity

with    her.     Those   kidnapping    by   restraint    offenses,    though

committed for the same purpose as the later kidnapping and felonious

assault, had a significance independent of the felonious assault.

 Logan.     Furthermore, they were committed separately from the

restraint that later kidnapping involved.           The jury could find

Defendant guilty of kidnapping in violation of R.C. 2905.01(A)(4)

on the basis of evidence it heard concerning any one of those prior,

separate       restraints.     Being    committed       separately,    those

kidnapping offenses do not merge with the later felonious assault.

       {¶ 40} Defendant’s sole assignment of error is overruled.         The

judgment of the trial court will be affirmed.
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FAIN, J., And HALL, J., concur.



Copies mailed to:

Andrew T. French, Esq.
Barry W. Wilford, Esq.
Hon. Barbara P. Gorman
