[Cite as State v. Smith, 2013-Ohio-3789.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-13-09

        v.

BRIAN K. SMITH, JR.,                                      OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2012 0283

                                      Judgment Affirmed

                           Date of Decision: September 3, 2013




APPEARANCES:

        Michael J. Short for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-13-09


SHAW, J.

         {¶1} Defendant-appellant Brian K. Smith, Jr., (“Smith”) appeals the

February 14, 2013, judgment of the Allen County Common Pleas Court

sentencing Smith to an aggregate prison term of fifteen years upon Smith’s

convictions for two counts of Felonious Assault in violation of R.C.

2903.11(A)(1), both felonies of the second degree, one count of Aggravated

Robbery in violation of R.C. 2911.01(A)(3), a felony of the first degree, and two

counts of Kidnapping in violation of R.C. 2905.01(A)(3), both felonies of the first

degree.1

         {¶2} The facts relevant to this appeal are as follows. On March 8, 2012,

Linsey Knoch (“Knoch”) and Christopher Miller (“Miller”) were visiting with

Knoch’s good friend Candace Williams (“Williams”) at Williams’s residence.2 At

the time, Williams was pregnant with Smith’s child. While Knoch and Miller

were at Williams’s residence, Smith came over.                           Later, when Williams was

already upstairs asleep, Knoch and Smith got into an argument as Knoch called

Smith a “dead beat father.” Eventually, as the argument continued, Smith became

upset and hit Knoch in the head, knocking her to the floor.




1
  Smith pled guilty to the charges against him.
2
  As there was no trial in this case, there is not a single narrative of facts. Therefore, these facts have been
compiled from the Indictment, the Police Reports, the Pre-Sentencing Investigation, the Bill of Particulars,
the hearing on the Motion to Suppress Evidence, and the Sentencing Hearing.

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Case No. 1-13-09


         {¶3} In an effort to prevent Smith from further assaulting Knoch, Miller

attempted to put Smith in a headlock. Smith broke out of the headlock and was

infuriated, prompting him to strike Miller numerous times in the head/face area

with both his fists. As a result of the strikes, Knoch stated that blood went

everywhere. Knoch then attempted to run out the front door, making it as far as

the front porch where a neighbor saw her. Smith ran after her and told the

neighbor that everything was okay and then Smith dragged Knoch back into the

house.

         {¶4} Back inside the residence, Smith resumed beating Miller. At some

point, Miller fell to the floor and Smith repeatedly kicked Miller in his back and

head. Knoch tried to stop Smith from continuing to kick Miller in the head, but

Smith head-butted her, knocking her down, causing a large hematoma to develop

on her forehead.

         {¶5} Smith eventually got a saucepan from the kitchen and repeatedly beat

Miller with it, striking Miller with such force that the pan was dented. While

Smith beat Miller, Smith yelled at Miller, “If you go down, she gets it,” meaning

that if Miller passed out, Smith would start to beat Knoch.

         {¶6} At one point, Smith told Miller and Knoch that Smith was going to cut

them up into little pieces and bury them in the basement. Smith looked through




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the kitchen for a knife but did not find one. Smith then grabbed a pizza cutter and

slashed at Miller, but the pizza cutter was dull so it did not cut him.

       {¶7} After the beatings ceased, Smith forced Miller to wipe his blood off

the walls in the living room with a baby wipe, saying to Miller, “Wipe the walls,

bitch! I ain’t getting caught up from this!” Knoch observed that Miller appeared

to barely be conscious, but was complying with the orders that Smith gave him.

       {¶8} Eventually, Smith told Miller and Knoch to take their clothes off.

Knoch talked Smith out of having to take her clothes off, but Miller disrobed, at

which point Smith took Miller’s money. Knoch then again tried to escape, but

Smith put his hand against the door and would not let her out.

       {¶9} Smith next ordered Miller upstairs to take a shower to wash the blood

off of him, and Knoch went with him. During that time, Smith came up and down

the stairs repeating how he was going to cut them up and bury them in the

basement. On one of the times up the stairs, Smith threw a wine bottle at Knoch

that hit her in the head with such force that it cut her head deeply, going through to

the third layer of skin/tissue causing her to bleed profusely. This injury was

approximately three inches long and later required 28 sutures to close.

       {¶10} While this was going on, Williams, who had been in her room asleep

with her children, managed to call one of her friends and had her friend call the

police. The police subsequently arrived to Williams’s residence and Smith made


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Knoch and Miller leave the bathroom where Miller had been washing the blood

off of him. Smith shoved Miller into a closet, and turned off the lights to the

house and told Knoch to “shut the kids up.”

      {¶11} When no one answered the door, police broke the glass to gain entry

into the residence. Knoch then dashed down the stairs with blood all over her

forehead and told the officers that “he” was still upstairs. Officers searched the

residence and located Smith, who was hiding under a mattress. Smith, who also

had active warrants out for his arrest, was arrested. As Smith was being taken out

of the house, he passed Knoch and said, “You know you had that coming.”

      {¶12} Knoch and Miller were taken by ambulance to St. Rita’s Medical

Center in Lima. Miller had to be placed on life support to aid his breathing and he

slipped into a coma. He also suffered a broken rib and a laceration in his nostril

that required what the doctor referred to as a “complex repair.” Miller’s airway

was stabilized and he regained consciousness later that evening. After a few days

in the hospital, he was released. However, due to nerve damage he suffered, he

has permanent injuries to his arms with nerve sensitivity and numbness.

      {¶13} Knoch’s wound on her head had gone down to the last layer of tissue

just before the skull. The Physician’s Assistant stated that in his 10 years of ER

experience less than 5% of these wounds had involved injuries going down that

far. Knoch was treated and released the same day.


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      {¶14} On August 16, 2012, Smith was indicted in a five count indictment

by the Allen County Grand Jury. Count 1 charged him with Felonious Assault of

Christopher Miller in violation of R.C. 2903.11(A)(1), a felony of the second

degree; Count 2 charged him with the felonious assault of Knoch in violation of

R.C. 2903.11(A)(1), a felony of the second degree; Count 3 charged him with

Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first

degree; Count 4 charged him with Kidnapping of Miller in violation of R.C.

2905.01(A)(3), a felony of the first degree; and Count 5 charged him with

Kidnapping of Knoch in violation of R.C. 2905.01(A)(3), a felony of the first

degree.

      {¶15} On August 27, 2012, Smith filed a motion for bill of particulars.

(Doc. 11).

      {¶16} On August 31, 2012, Smith filed a motion to suppress, arguing that,

inter alia, a statement Smith gave March 8, 2012, to Detective Scott Leland should

be suppressed. (Doc. 13). On September 27, 2012, a hearing was held on the

motion to suppress. On October 9, 2012, the trial court filed a judgment entry

denying Smith’s motion to suppress the statement he gave to Detective Scott

Leland. (Doc. 24).

      {¶17} On October 16, 2012, the State filed a bill of particulars. (Doc. 29).




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           {¶18} On January 7, 2013, a hearing was held wherein Smith agreed to

plead guilty to the charges in the indictment. In exchange, the State agreed to

stand silent at sentencing, but reserved the right to argue against merger of the

offenses. In addition, it was also included in the plea agreement that the court

would “sentence [Smith] to no more than what he could get for three F-2s, or 24

years,” as Smith had previously been given an offer to plead guilty to three F-2s,

but declined that offer.3 The trial court conducted a Criminal Rule 11 colloquy

with Smith at the hearing, and then accepted Smith’s guilty plea to the charges.

           {¶19} On January 8, 2013, the trial court entered a judgment entry of

conviction, stating that Smith had pled guilty to two counts of Felonious Assault in

violation of R.C. 2903.11(A)(1), both felonies of the second degree, one count of

Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first

degree, and two counts of Kidnapping in violation of R.C. 2905.01(A)(3), both

felonies of the first degree. (Doc. 81).

           {¶20} On February 14, 2013, a sentencing hearing was held.                   At the

sentencing hearing, Smith’s mother gave testimony that Smith had an alcohol

problem and that he needed help with that problem. Smith also gave a statement

that he had a drug and alcohol problem, and that he was sorry for what he had

done to the victims.



3
    The plea agreement containing this language was filed January 8, 2013. (Doc. 80).

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Case No. 1-13-09


      {¶21} Ultimately, Smith was sentenced to 5 years in prison on each of the

five counts in the indictment, with Count 1 to run concurrent to Count 4 (the

Felonious Assault and Kidnapping of victim Miller), and Count 2 to run

concurrent to Count 5 (the Felonious Assault and Kidnapping of victim Knoch). It

was further ordered that the prison term for Counts 1 and 4 was to be served

consecutive to the prison term imposed for Counts 2 and 5 and that those prison

sentences would be served consecutive to the five year prison term for Count 3

(Aggravated Robbery), for an aggregate prison sentence of 15 years. (Doc. 87).

      {¶22} It is from this judgment that Smith appeals, asserting the following

assignment of error for our review.

                  ASSIGNMENT OF ERROR
      THE TRIAL COURT ERRED IN FAILING TO MERGE
      COUNTS FOR THE PURPOSES OF SENTENCING.

      {¶23} In his assignment of error, Smith argues that the trial court erred in

failing to merge various counts against him for the purposes of sentencing.

Specifically, Smith contends that his convictions for Felonious Assault and

Kidnapping against each victim were part of the same course of conduct and

should merge, and that his conviction for Aggravated Robbery should merge with

his Felonious Assault and Kidnapping offenses against Miller.

      {¶24} Whether offenses are allied offenses of similar import is a question

of law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3–10–12, 2011–


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Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1–10–31, 2011–Ohio–1461, ¶

36. Revised Code 2941.25, Ohio's multiple-count statute, 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.

      {¶25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the

Supreme Court of Ohio modified the analysis for determining whether offenses

are allied offenses of similar import under R.C. 2941.25. According to Johnson, a

court must first determine whether it is possible to commit both offenses with the

same conduct. Id. at ¶ 48. “If the multiple offenses can be committed with 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, ¶ 50

(Lanzinger, J., dissenting). If it is possible to commit the offenses with the same

conduct and the defendant did, in fact, commit the multiple offenses with the same

conduct, then the offenses are allied offenses of similar import and will merge. Id.

at ¶ 50. However, “if the court determines that the commission of one offense will


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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.

      {¶26} In this case, Smith was convicted of two counts of Felonious Assault,

one count of Aggravated Robbery, and two counts of Kidnapping. The Felonious

Assault statute, R.C. 2903.11(A)(1), reads,

      (A) No person shall knowingly * * *

      (1) Cause serious physical harm to another or to another's
      unborn;

The Aggravated Robbery statute, R.C. 2911.01(A)(3), reads

      (A) No person, in attempting or committing a theft offense, as
      defined in section 2913.01 of the Revised Code, or in fleeing
      immediately after the attempt or offense, shall do any of the
      following:

      ***

      (3) Inflict, or attempt to inflict, serious physical harm on
      another.

The Kidnapping statute, R.C. 2905.01(A)(3), reads

      (A) 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
      person is found or restrain the liberty of the other person, for
      any of the following purposes:



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         ***

         (3) To terrorize, or to inflict serious physical harm on the
         victim or another;

         {¶27} In State v. Logan, 60 Ohio St.2d 126 (1979), the Ohio Supreme

Court provided guidance on when Kidnapping merges with another offense.4 In

Logan, the Ohio Supreme Court held the following.

         In establishing whether kidnapping and another offense of the
         same or similar kind are committed with a separate animus as to
         each pursuant to R.C. 2941.25(B), this court adopts 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.

Logan at syllabus, Stall, at ¶ 20.

         {¶28} Thus our analysis of the merger issues in this case is guided by R.C.

2941.25, Johnson, Logan, and the corresponding criminal statutes referenced

4
 As both the State and Smith point out in their briefs to this court, in State v. Stall, 3d Dist. No. 3-10-12,
2011-Ohio-5733, we referenced the analysis in Logan as still being sound in determining whether
Kidnapping merges with other offenses.

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above. It should be noted that both at the time of sentencing, and on appeal, the

State concedes that it is possible to commit the offenses in this case during the

same course of conduct, which would satisfy the first prong of Johnson. However,

the State adamantly disagrees with Smith’s contention on appeal that in this

instance the crimes were committed in the same course of conduct or with the

same animus. Therefore, the State contends that the trial court’s decision not to

merge the offenses was correct.

       {¶29} Smith argues on appeal that his convictions for Felonious Assault

and Kidnapping against each victim should merge, and that his conviction for

Aggravated Robbery should merge with his offenses against Miller.            Smith

contends that the offenses were committed in the same course of conduct. Smith

made these same arguments at his sentencing hearing, and at that hearing, the trial

court ultimately found “that none of the counts merge.” (Feb. 14, 2013, Tr. at 31).

In making this finding, the court reasoned,

       While the Felonious Assaults and the Kidnappings could
       possibly occur at the same time, that’s only part of the test. The
       other part is you have to view whether there was a separate
       animus for the offenses. When I review the discovery and the
       synopsis in the P.S.I. I would find that all of the offenses are
       separated sufficiently in terms of temporally and really
       geographically within the house. I would also point out that
       according to the information in the discovery and the P.S.I. the
       initial Felonious Assaults occurred and then, according to the
       information that the Court has, Miss Knoch was able to get out
       of the house and the defendant actually ran after her and left the
       house and spoke to a neighbor. So, the Felonious Assaults had

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       occurred. Then they come back into the house and they resume.
       Additional Felonious Assaults and then the Kidnappings occur
       and the Robbery occurs separately from that.

       So, I would find that there are separate animuses for all of the
       offenses.

(Feb. 14, 2013, Tr. at 31).

       {¶30} Analyzing first the Felonious Assault, Kidnapping, and Aggravated

Robbery of victim Miller, the facts of this case show that the Felonious Assault

perpetrated by Smith against Miller occurred over a period of time and continued

to escalate. Miller was initially beaten bloody by Smith’s fists. That beating was

stopped when Knoch attempted to leave the residence.             After leaving Miller

momentarily to bring Knoch back into the residence, Smith resumed beating

Miller until Miller fell to the ground, at which time Smith kicked Miller repeatedly

in the head and back. This was interrupted when Knoch tried to stop Smith.

Subsequently, Miller was further beaten with a kitchen pan to the extent that the

pan was heavily dented. As a result of these attacks, Miller was extremely bloody,

barely conscious, and his blood had gotten all over the walls.

       {¶31} Miller was restrained during these beatings, and in the interim. In

addition, Miller was forced to wipe his blood off of the walls, and forced upstairs

to take a shower to wash the blood off of him. While Miller was upstairs, the facts

indicate that Smith came up and down the stairs and yelled that he was going to

cut Miller and Knoch into pieces and bury them in the basement. This constitutes

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an attempt to “terrorize” Miller, and had the police not shown up at the residence,

Miller might have been subjected to further beatings or worse. Notably, when

Miller was forced to wipe the walls down and forced upstairs, the Felonious

Assault had already been completed, although there was threat of further Assault.

       {¶32} Based on the facts of this case we find that the Felonious Assault and

Kidnapping of Miller were separated by time and geography in the home, and that

the Kidnapping created a substantial increase in risk of harm separate and distinct

from the Felonious Assault, which would preclude merger under Logan.              In

addition, the record indicates a separate animus due to the later desire to terrorize

Miller. Under these circumstances we cannot find that the Felonious Assault and

the Kidnapping offenses perpetrated against Miller merge.

       {¶33} Furthermore, we cannot find that the Felonious Assault against

Miller merges with the Aggravated Robbery of Miller, as the Aggravated Robbery

occurred after the Felonious Assault was complete. It is clear from the facts that

the Felonious Assault of Miller was not done to further a Robbery, and it only

occurred to Smith after he had already assaulted Miller to order Miller to strip and

to take Miller’s money. Thus there was a separate animus for each crime. This is

consistent with our decision in State v. Diggle, 3d Dist. No. 2-11-19, 2012-Ohio-

1583, wherein a victim was severely beaten and then robbed, and we determined




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there was a separate animus for each offense. Diggle at ¶ 17. Therefore, the

Aggravated Robbery and the Felonious Assault offenses do not merge.

       {¶34} A separate animus also is discernible from the facts for the

Kidnapping of Miller and the Aggravated Robbery of Miller as the detention far

exceeded the length of time necessary for an Aggravated Robbery and created a

substantial increase in risk of harm to Miller. Moreover, the prolonged detention

was used to terrorize Miller with the threats of death and being chopped to pieces

and buried in the basement. Furthermore, the detention occurred both before and

after the Aggravated Robbery. Thus based on the facts of this case, we cannot

find that any of the offenses against Miller merge.

       {¶35} Turning next to the Felonious Assault and Kidnapping Smith

perpetrated against Knoch, we similarly find that the offenses should not merge.

Knoch attempted multiple times to get away from Smith and he restrained her

liberty in each instance. After Knoch’s early attempt to get away from Smith

where she made it onto the front porch, Smith head-butted her, knocking her to the

ground, causing what was described as a large hematoma to develop on Knoch’s

forehead. Knoch later tried for a second time to get away, but Smith blocked the

door. Subsequently Knoch was ordered upstairs, and during that time, she was

struck in the head by a bottle of wine that Smith had thrown, creating a deep,

three-inch long gash that required 28 sutures.


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       {¶36} While Knoch was upstairs, Smith also made the comments about

killing her and Miller and cutting them up into pieces. We find that based on these

facts, the offenses would be considered separate under Logan, and a separate

animus is discernible for the Kidnapping and the Felonious Assault of Knoch.

Therefore, we find that the offenses against Knoch should not merge.

       {¶37} Accordingly, we find that none of the offenses committed by Smith

should have merged and that the trial court’s conclusion on this matter at

sentencing was correct. Smith’s assignment of error is overruled.

       {¶38} For the foregoing reasons Smith’s assignment of error is overruled

and the judgment of the Allen County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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