[Cite as State v. Smith, 2016-Ohio-8043.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103586




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    REGINALD SMITH
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-594579-A

        BEFORE: Laster Mays, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: December 8, 2016
                               -i-
ATTORNEY FOR APPELLANT

John T. Castele
Rockefeller Building, Suite 1310
614 W. Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Denise J. Salerno
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1}   Defendant-appellant Reginald Smith (“Smith”) appeals his convictions for

two counts of rape and one count of kidnapping with a sexual motivation specification.

The rape counts merged, and Smith was sentenced to concurrent ten-year terms with sex

offender registration under Megan’s Law upon release. After a thorough review of the

record, we affirm the convictions, vacate the sentences, and remand for hearing and

resentencing according to this opinion.

I.       BACKGROUND AND FACTS

       {¶2}    Smith was indicted on April 1, 2015 for two counts of rape:

R.C. 2907.02(A)(2), rape by force; and 2907.02.(A)(1), rape with knowledge of

substantial impairment; and kidnapping with a sexual motivation, R.C. 2905.01(A)(4).

Each charge is a first-degree felony. The charges arose from an assault that occurred on

January 8, 2006, more than nine years earlier, when Smith was 21 years of age. Smith

pleaded not guilty to the charges, and a bench trial ensued.

       {¶3}   Prior to the beginning of the trial, Smith moved the court to dismiss the

case, claiming prejudice due to preindictment delay.           “Witnesses have disappeared,

memories have faded, and people are no longer available that would have been available

had this case been prosecuted diligently.” The trial court denied the motion, finding that
Smith failed to demonstrate actual prejudice or introduce evidence substantiating his

position.

       {¶4} The identified victim (“D.P.”) testified that her 14th birthday was on January

8, 2006. The afternoon and evening before her birthday, D.P. was out celebrating with:

(1) two female friends, Shontel and Roselyn, who were 17 or 18 at the time, (2) another

male whose name D.P. could not recall, and (3) Smith, who she knew only as “GG,” who

was driving the car. Smith was an acquaintance of Jonathan Jones (“Jones”), the father

of D.P.’s child. D.P. did not know Smith’s age, but she knew that he was older than she.

 The group was smoking marijuana, drinking and visiting various places.

       {¶5}   At about 10:00 p.m., the group got into Smith’s car again. D.P. was not

sure where they were going. The group was still smoking and drinking, and D.P. was

intoxicated. They dropped Shontel off and proceeded to a house on Orinoco in East

Cleveland where Smith was living. The group smoked more marijuana in the van.

       {¶6}   D.P. entered the restroom when they arrived at Smith’s house. When D.P.

exited the restroom, Smith summoned her to the bedroom where she sat on the bed and

smoked more marijuana. The two were alone in the room.

       {¶7} When D.P. got up to leave, Smith pulled the door knob out of the door and

closed it so that D.P. could not open it. Smith told her they were going to have sex and

offered her $20. D.P. testified that she told him “no,” but Smith pulled down her pants

and underwear and engaged in vaginal intercourse with

her on the bed. D.P. did not attempt to open the door or to resist. She did not want to
have sex with Smith, but “felt hopeless” because she could not physically stop him, and

had no way of leaving the bedroom.

       {¶8}    When Smith was finished, he “snatched” the $20 from her and replaced the

door knob. D.P. was upset and exited the room. Roselyn was there and another girl she

had not seen earlier. When D.P. exited the room, she got into the car with Smith. After

driving a few streets from his house, Smith told her to get out of the car. D.P. called her

sister and told her that “GG” or Smith had raped her. D.P.’s sister picked her up and

took her to Huron Road Hospital.

       {¶9} Though D.P. initially told the police that she was not sure which house

belonged to Smith, she testified on cross-examination that, shortly after the assault, she

asked someone to damage Smith’s vehicle that he parked in front of his house. The

police never followed up with her or asked D.P. to take them to the location to see if she

could identify the vehicle or the house. In fact, D.P. did not hear from the authorities

from the time of the incident until early 2015. During the interim, D.P. occasionally saw

Smith around the neighborhood and felt traumatized by the experience.

       {¶10}    Shortly before the trial, D.P. talked with Tina Smith, Smith’s mother

(“Mother”), but never demanded money from her in exchange for failing to testify.

Jones also questioned D.P. about the case.

       {¶11}     Mother testified next.      A recording was played of a telephone call

between Mother and Smith. Smith supplied Mother with a telephone number during the

conversation. The telephone number belonged to D.P. Mother telephoned D.P. once,
but only to see whether D.P. was alright. D.P. told Mother that she could “[p]ay her and

she won’t come to court.” Mother did not know D.P.’s name, but Smith told her that the

girl who asked her for money was the person who claimed that Smith raped her. Mother

denied that Smith told her to contact D.P. to ask whether D.P. would accept money in

exchange for failing to testify.

       {¶12} On January 8, 2006, Rhonda Gray (“Gray”) was working as a Sexual

Assault Nurse Examiner (“SANE nurse”) at Huron Road Hospital. Gray also worked

with the Cleveland Police Department for 27 years, 18 years as a detective, and was

serving her second-year as a homicide detective. Gray has also worked in the medical

field for 16 years, and continues to work in that capacity.

       {¶13} Gray examined D.P., took swabs, and administered a rape kit. D.P. told

Gray that: (1) she was raped by GG (Smith); (2) she kept telling him “no”; (3) he had

her get out of his car on Woodworth Avenue; and (4) she called her sister to pick her up.

Gray described D.P. as upset and crying. D.P. had no visible injuries.

       {¶14} Officer John Bechtel (“Officer Bechtel”) of the East Cleveland Police

Department testified that D.P. was upset and crying during his interview with D.P. at the

hospital. D.P. told him that she was raped by GG who lived in a house on Orinoco in

East Cleveland, and provided a vague description of the bedroom where the rape

occurred. Officer Bechtel said that, since there were more than 100 two-family houses

on Orinoco, and D.P. was unable to provide sufficient identifying information, he

returned to the station.
          {¶15} Officer Bechtel prepared the January 8, 2006 police report, containing the

identifying information of the assailant as “GG who resided on Orinoco.” GG was listed

as a black male, 25 years of age, with a black shirt and jeans. Officer Bechtel did not

follow up on the information or take D.P. to Orinoco for attempted identification. The

protocol was to deliver the report to the East Cleveland Detective Bureau who would be

responsible for following up.

          {¶16} Officer Michael DeLisle (“Officer DeLisle”) of the East Cleveland Police

Department tagged D.P.’s rape kit in September 2013 to deliver to BCI. Officer Delisle

agreed that it would have been a good investigative practice to attempt to identify the

address of the assault for the preservation of evidence at the time of the initial 2006

report.

          {¶17}     Investigator Ferrel Ridgeway (“Investigator Ridgeway”) from the

Cuyahoga County Prosecutor’s Office cold case DNA task force was notified on March

10, 2015, that a CODIS hit for D.P.’s rape kit revealed DNA from two individuals:

Jones, the father of D.P.’s child, and Smith.     Investigator Ridgeway notified D.P. that

Smith’s DNA had been identified in D.P.’s 2006 rape kit. This was the first time law

enforcement contacted D.P. since the 2006 rape.

          {¶18} Investigator Ridgeway and Investigator Timothy Clark (“Investigator

Clark”) met with D.P. on March 15, 2015. D.P. identified Smith as her rapist from two

photographic arrays that also contained a photograph of Jones.          D.P. admitted to
Investigator Ridgeway that she was smoking marijuana and drinking the night of the rape,

described the events of that night, and stated that she never gave consent.

        {¶19} Investigator Ridgeway interviewed Smith who admitted to consensual sex

with D.P. after being confronted with the DNA results. Smith also confirmed that he

gave D.P. $20 and that his nickname is GG. Smith claimed surprise that D.P. was 14

years of age at the time. Investigator Ridgeway secured a buccal swab from Smith for

the Bureau of Criminal Investigation (“BCI”).

        {¶20}    Investigator Ridgeway did not know why there was a delay in the

investigation. According to East Cleveland police records, Detective Tiffany Cleveland

was assigned to the case, but Investigator Ridgeway did not know what happened after

that.

        {¶21} BCI Forensic Scientist Emily Feldenkris (“Feldenkris”) testified regarding

two BCI analysis reports. The first report analyzed the rape kit that was submitted to

BCI on September 13, 2013. The second report contained an analysis of the DNA

standard obtained from Smith on March 27, 2015.

        {¶22} The tests results demonstrated that Smith was a major contributor to the

vaginal, anal, and underwear DNA samples. Smith was also a major contributor to the

DNA in the pubic hair combings.

        {¶23} Defense witness Jennifer Kirk Smith (“Kirk”), a registered nurse, rented

the house on Orinoco from her mother. Smith was a close, long-time friend of Kirk’s
brother. Smith rented a bedroom from Kirk for about a month at the time of the assault,

while he waited for his new place to become available.

       {¶24} On January 8, 2006, Kirk was working at McDonald’s, and arrived home

after work at about 1:00 a.m. She saw Smith and D.P. exiting the bedroom, and said that

D.P. was “jovial” and seemed to be fine. D.P.’s clothes were not disheveled and her hair

was in place.

       {¶25}    D.P. told Kirk that she knew who she was, and the two exchanged

pleasantries. Kirk did not know that D.P. was underage and thought that she was at least

older than 15, “she looked like a young lady.” Kirk was with D.P. and Smith for about

30 minutes and there was no evidence of any problems or discomfort. Kirk asked them

to leave at that time.

       {¶26} Kirk stated there were no locks on the interior doors of the house, and

there were times when the door knobs came “out of the doors, and we’ve had

alternate ways of getting out. We took butter knives. We took coat hangers to get out

of those doors. So we have came up [sic] with alternate ways.” Kirk was asked if she

talked with the Smith family regarding this case. Kirk stated that she did not speak with

any members of the Smith family about the case, and had not heard of money being

offered to D.P. to refrain from testifying.

       {¶27} Smith renewed the motion to dismiss for preindictment delay at the close

of the state’s case and after Smith presented his defense. The motion was denied by the

trial court both times.
      {¶28} The trial court found Smith guilty of all charges. Smith was sentenced on

September 3, 2015. The rape charges merged; however, the trial court determined that

the rape and kidnapping were not allied offenses. The trial court stated that the removal

of the door knob constituted the kidnapping, and the rape followed. The state elected to

proceed under the forcible rape charge, R.C. 2907.02(A)(2).

      {¶29}    During sentencing, the trial court addressed the factors demonstrating

compliance with the principles, policy and purpose of R.C. 2929.11(A), and seriousness

factors under R.C. 2929.12(B).     The court also considered Smith’s criminal record,

beginning with his juvenile records, and his felony record to the date of sentencing.

Smith was sentenced to ten years on each count, to be served concurrently. Smith was

also subject to five years postrelease control (“PRC”), accompanied by an explanation by

the trial court of the ramifications of failure to comply with the PRC conditions. Smith

was also classified as a sexually oriented offender under Megan’s Law.

II.   ASSIGNMENTS OF ERROR

      {¶30} Smith proffers four assignments of error:

      1.      The trial court erred in not granting the defendant’s motion to
              dismiss the indictment as a result of the prejudice he suffered from
              the preindictment delay without just cause violating his due process
              rights and his right to a fair trial.

      2.      The defendant’s convictions were against the manifest weight of the
              evidence.

      3.      The trial court erred in finding that rape and kidnapping were not
              allied offenses of similar import.

      4.      The sentence imposed upon the defendant was contrary to law.
III.   LAW AND ANALYSIS

       A.      Motion for Preindictment Delay

       {¶31}     We begin with Smith’s first assigned error claiming prejudice due to

preindictment delay. We find this error to be without merit.

       {¶32}     “Decisions to grant or deny a motion to dismiss on grounds of

preindictment delay are reviewed for an abuse of discretion.” State v. Darmond, 135

Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 33, citing State v. Parson, 6 Ohio

St.3d 442, 445, 453 N.E.2d 689 (1983); State v. Jackson, 8th Dist. Cuyahoga No. 102394,

2015-Ohio-4274, ¶ 3.

       {¶33} Great deference is afforded to the trial court’s findings of fact in

determining whether to grant or deny a motion to dismiss for preindictment delay.

However, an appellate court applies a de novo standard of review to the legal issues.

State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, citing State v.

Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45.

       {¶34} Where a delay in initiating an indictment is unjustifiable, and the delay

causes actual prejudice to the defendant’s right to a fair trial, the Due Process Clause

affords the defendant additional protection. See State v. Luck, 15 Ohio St.3d 150, 472

N.E.2d 1097 (1984), paragraph two of the syllabus.        This is true even though the

applicable statute of limitations has not expired.    State v. Jones, Slip Opinion No.

2016-Ohio-5105.
      {¶35} Smith relies on this court’s en banc decision in State v. Jones,

2015-Ohio-2853, 35 N.E.3d 606 (8th Dist.), where we considered the reasons for the

preindictment delay prior to determining actual prejudice. However, the Ohio Supreme

Court recently reversed that decision in Jones, Slip Opinion No. 2016-Ohio-5105. The

court determined that actual prejudice is the first step in establishing unjustifiable

preindictment delay:

       [W]e have firmly established a burden-shifting framework for analyzing a
       due-process claim based on preindictment delay. Once a defendant
       presents evidence of actual prejudice, the burden shifts to the state to
       produce evidence of a justifiable reason for the delay. State v. Whiting, 84
       Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio
       St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99.
Jones at ¶ 13.

      {¶36}        The analysis requires scrutiny of:

      [T]he claim of prejudice vis-à-vis the particular evidence that was lost or
      unavailable as a result of the delay and, in particular, considered the
      relevance of the lost evidence and its purported effect on the defense. See,
      e.g., State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶
      52.

Jones at ¶ 23. Thus, in determining whether Smith has demonstrated actual prejudice,

we look at the evidence that was lost or unavailable to Smith as the result of the delay.

Id.

              1.        Actual Prejudice

      {¶37}        The DNA results confirmed that Smith engaged in intercourse with D.P.

D.P.’s statements to the hospital, police, and investigators were consistent. Smith

admitted to the act, though he claimed he did not know D.P.’s age, and that the
intercourse was consensual. Smith also mentioned that he should not have taken the $20

back.

        {¶38} Smith argues that, if the action had been initiated in 2006, there were

“possibly” unidentified witnesses that were never contacted by police or refused to show

at trial.   “Perhaps” Smith could have been interviewed and evidence collected that

corroborated Smith’s claim of consensual sex with D.P. But substantial, actual prejudice

is not about possibilities. There is nothing in the record to support that exculpatory

evidence was lost, or that attempts were made to contact witnesses who could not be

located or were unable to remember.

        {¶39} There were no witnesses in the bedroom during the act. Smith presented

the testimony of Kirk, who testified that D.P. seemed fine and was not upset or

disheveled. Kirk was in their presence for 30 minutes and observed no signs of stress or

conflict. Kirk confirmed that the door knobs in the older residence could be pulled out,

and that another means of opening the door, such as a table knife blade, would be

inserted to open the door. Kirk was not at home at the time of the assault and could not

say what happened prior to her arrival. Kirk testified that Smith and D.P. were walking

out of the bedroom when she arrived. Though D.P. testified that she arrived at the house

with Roselyn, Kirk did not testify that anyone else was present.

        {¶40} We do not find that “witnesses have disappeared, memories have faded,

and people are no longer available that would have been available had this case been

prosecuted diligently,” as Smith argued before the trial court in
support of his motion. We agree with the trial court’s finding that Smith failed to

demonstrate actual prejudice or introduce evidence substantiating his position.

         {¶41}    Smith has failed to satisfy the first prong of the test; therefore, the burden

does not shift and our analysis is complete. Smith’s first assigned error is without merit.

         B.      Manifest Weight

         {¶42}    The second assigned error asserts that the verdict is against the manifest

weight of the evidence. A manifest weight inquiry considers whether the evidence was

substantial enough for a jury to reasonably conclude that all of the elements of the alleged

crime have been proved beyond a reasonable doubt.            We sit “as a ‘thirteenth juror.’”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). We review the entire

record, consider the credibility of the witnesses, weigh the evidence and all reasonable

inferences, and determine whether the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

         {¶43}    The weight of the evidence concerns the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.    During a bench trial, unless it affirmatively appears to the contrary, there is a

presumption that the court considered only reliable, relevant and competent evidence.

State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968); State v. Andre, 8th Dist.

Cuyahoga No. 101023, 2015-Ohio-17, ¶ 27. While reversal from a bench trial requires
only a majority concurrence, it is reserved for the ““‘exceptional case in which the

evidence weights heavily against the conviction.’”” Id. at ¶ 40, quoting Thompkins at 387,

quoting Martin, supra.

       {¶44}    Smith posits that the sole fact in dispute was whether the sex was

consensual. To this end, Smith argues that, since he was 21 years old, and D.P. was 14

years old at the time of the offense, Smith should have been convicted of unlawful sexual

conduct with a minor under R.C. 2907.04, and not rape.

       {¶45}    Smith was convicted of: (1) R.C. 2907.02(A)(2), vaginal intercourse

with D.P. by purposely compelling her to submit by force or threat of force; (2)

R.C. 2907.02(A)(1)(c), vaginal intercourse where Smith knew that D.P.’s ability to resist

or consent was substantially impaired because of a mental or physical condition; and (3)

R.C. 2905.01(A)(4), restraint of D.P.’s liberty for the purpose of engaging in sexual

activity against her will, with a sexual motivation specification. Unlawful sex with a

minor under R.C. 2907.04 does not require proof of force or threat, but requires proof of

sexual conduct where offender knew, or was reckless in knowing, that the victim’s age

was 13 to 16 years of age.

       {¶46}    While D.P. testified that she was raped and upset when leaving the

bedroom, Kirk testified that D.P. was fine and socialized with her for 30 minutes. The

trial court, as factfinder, was in the best position to observe the witnesses and weigh the

evidence in resolving conflicting testimony. State v. DeHaas, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967).
       {¶47}    The trial court described the evidence considered in reaching a finding:

       Now, this court, after a careful and deliberate review of all the evidence
       finds that the State of Ohio has presented evidence that rises to the
       acceptable legal standard of guilty beyond a reasonable doubt as to Count
       One, rape, as to Count Two, rape, and as to Count Three, kidnapping.

       I reviewed the evidence here, and I evaluated the credibility of the victim
       [D.P.], along with the testimony of Tina Smith, Ferrel Ridgeway, and
       Jennifer Kirk Smith as fact witnesses in this matter. And reviewing that
       evidence along with the DNA evidence that was presented through Emily
       Feldenkris, John Bechtel, Detective Rhonda Gray, and Sergeant Mike
       DeLisle, I believe that this verdict is consistent with the evidence that I
       heard and the exhibits that I reviewed, specifically exhibit Nos. 1-8, 10, and
       10-13.

(Tr. 284 and 285.)

       {¶48} We do not find that this is the exceptional case that weighs heavily against

conviction, Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, at ¶ 40, or that the

presumption that the court considered only reliable, relevant and competent evidence has

been overcome. White, 15 Ohio St.2d at 151, 239 N.E.2d 65. The second assignment of

error is overruled.

       C.      Allied Offenses

       {¶49}    Smith argues in the third assignment of error that the convictions for rape

and kidnapping are allied offenses. We agree.

       {¶50} R.C. 2941.25, known as the merger statute, codifies the constitutional

protections afforded under the Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, ¶ 12. “This court reviews the trial court’s decision de novo, but must give deference
to the factual findings made by the trial court.” State v. Echols, 8th Dist. Cuyahoga No.

102504, 2015-Ohio-5138, ¶ 37, citing           State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 25-28.

       {¶51} The Ruff court expanded on the analysis set forth in prior case law in

determining whether the offenses are allied:

       Rather than compare the elements of two offenses to determine whether
       they are allied offenses of similar import, the analysis must focus on the
       defendant’s conduct to determine whether one or more convictions may
       result because an offense may be committed in a variety of ways and the
       offenses committed may have different import. No bright-line rule can
       govern every situation.

       As a practical matter, when determining whether offenses are allied
       offenses of similar import within the meaning of R.C. 2941.25, courts
       must ask three questions when defendant’s conduct supports multiple
       offenses: (1) Were the offenses dissimilar in import or significance? (2)
       Were they committed separately? and (3) Were they committed with
       separate animus or motivation? An affirmative answer to any of the above
       will permit separate convictions. The conduct, the animus, and the import
       must all be considered.

(Emphasis added.) Ruff at ¶ 30-31.

       {¶52} We recently conducted a Ruff inquiry involving a similar fact situation in

Echols, supra.

       {¶53}     Echols involved two counts of rape and two counts of kidnapping,

occurring on two different dates with different victims. Id. at ¶ 2. The first incident was

on June 7, 1994. Victim K.C. was walking home when: (1) Echols jumped out from a

tree, (2) held a knife to the victim’s throat, (3) threatened her, (4) moved her from the

sidewalk to behind a tree, and (4) raped her. Id. at ¶ 3.
       {¶54} M.M., the second victim, was accosted on May 8, 1999, but was unable to

testify by the time of trial as she was murdered in 2007. According to medical records

the night of the offense, M.M. was waiting at a bus stop when a car pulled up, and a man

threatened to hurt her if she did not get into the car. Upon entering, she was hit in the

head with a brick, and raped. Id. at ¶ 4.

       {¶55}     The DNA kits were tested, incidents investigated and charges filed on

December 6, 2013. A jury found Echols guilty of two counts of rape

(R.C. 2907.02(A)(2)), and two counts of kidnapping (R.C. 2905.01(A)(4)). The court

determined that the counts did not merge. Echols was sentenced to 11 years for rape and

ten years for kidnapping for the 1994 offense, and ten years each for rape and kidnapping

on the second.

       {¶56} It is axiomatic that the Ohio kidnapping statute (R.C. 2905.01), does not

require movement of the victim. The act of restraint by “force, threat, or deception” is

sufficient. R.C. 2905.01; Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶

38, citing State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979). “[I]mplicit within

every forcible rape is a kidnapping.” Logan at 130. Pursuant to Ruff, our inquiry does

not stop there. We look at the three factors cited in considering whether each offense: (1)

caused separate identifiable harm (2) was committed separately, and (3) was committed

with separate animus or motivation. An affirmative answer to one question results in

denial of the merger. Id. at ¶ 25.
       {¶57}      We determined, in applying Ruff to the offenses involving K.C., that the

offenses were, in fact, allied.

       When analyzing similar import, the [Ruff] court focused on separate and
       identifiable harm similar to its prior holding in Logan. [Ruff] at ¶ 26. Here,
       the evidence presented was that the asportation of K.C. was slight. K.C.
       was moved from the sidewalk to behind a tree next to the sidewalk. There
       was no increased risk of harm associated with this movement apart from
       that associated with the sexual assault. This movement was done for the
       purpose of raping K.C. with no separate, identifiable harm. The movement
       was done in conjunction with the rape, and was not separated by any
       significant length of time or distance.

Echols at ¶ 38.

       {¶58} We contrasted our findings as to K.C. with Echols’s conduct regarding

M.M. Echols forced M.M. into his vehicle, hit her in the head with a brick, drove away

from the area, and raped her.        “The trial court’s finding that this movement was

significant and encompassed an increased risk of harm is supported. The asportation of

M.M. constituted a separate crime for which appellant may be separately punished.” Id.

at ¶ 40. Compare State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 50

(the kidnapping was a long chain of events that were not merely incidental to the rape so

counts did not merge).

       {¶59}      We therefore look at the facts surrounding Smith’s conviction.        D.P.

testified that Smith called her to enter the bedroom as she exited the restroom. D.P.

entered the bedroom voluntarily, sat on the bed, and smoked marijuana with Smith, as she

had been doing throughout the day. According to Smith’s witness Kirk, there were no

locks on the bedroom doors.
       {¶60} D.P. said that, when she stood up to leave, Smith removed the door knob,

turned to D.P., told her that they were going to have sex, and began removing her clothes.

 D.P. said she told Smith “no,” maybe twice. After the intercourse, Smith replaced the

door knob, and the two exited the bedroom.

       {¶61} The facts demonstrate that the removal of the door knob (kidnapping) was

for the purpose of perpetrating the sexual act that immediately followed.             “The

movement was done with the purpose of raping [the victim] with no separate, identifiable

harm.” Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, at ¶ 38. In addition,

“the movement was done in conjunction with the rape and was not separated by any

significant length of time or distance.” Id. The kidnapping and rape were committed

simultaneously and with the same animus.

       {¶62} Thus, the kidnapping and rapes were allied offenses, and Smith may only

be sentenced for one offense. The third assignment of error is sustained.

       D.     Sentence is Contrary to Law

       {¶63} The appellate court’s standard for review pursuant to R.C. 2953.08(G)(2)

for felony sentencing is whether the court:

       “[C]learly and convincingly” finds that (1) “the record does not support the
       sentencing court’s findings under R.C. 2929.14(C)(4),” or that (2) “the
       sentence is otherwise contrary to law,” then we “may increase, reduce, or
       otherwise modify a sentence * * * or [a reviewing court] may vacate the
       sentence and remand the matter to the sentencing court for resentencing.”

State v. Ziska, 8th Dist. Cuyahoga No. 102798, 2016-Ohio-390, ¶ 6, quoting

R.C. 2953.08.
       {¶64}    Smith argues here that the trial court erred by sentencing him

under H.B. 86 instead of the law in effect in 2006. As a result, Smith argues that his

sentence is contrary to law. We disagree.

       {¶65} The Ohio Supreme Court recently addressed this issue in State v. Thomas,

Slip Opinion No. 2016-Ohio-5567 (“Thomas II”), affirming this court’s decision in State

v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415 (“Thomas I”). Thomas

committed rape and kidnapping offenses in 1993. He was convicted in 2011 and

argued that he should receive the benefit of the shorter sentencing available under H.B.

86. The state argued that H.B. 86 was merely an extension of S.B. 2, so that Thomas did

not receive that benefit, and the trial court sentenced accordingly.

       {¶66}    On appeal, we agreed with Thomas that H.B. 86 applied. The Ohio

Supreme Court affirmed our findings. We observed in Thomas I that:

       [I]n S.B. 2 the General Assembly specifically declared that all defendants
       who committed crimes on or before July 1, 1996 had to be sentenced under
       the law in existence at the time of the offense, “notwithstanding division
       (B) of section 1.58 of the Revised Code.” Section 3, Am.Sub.S.B. No. 269,
       146 Ohio Laws, Part IV, 11099, amending Section 5 of S.B. 2. See State v.
       Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998).

       However, H.B. 86 does not incorporate this exclusionary language. On the
       contrary, Sections 3 and 4 of the act expressly provide that certain specified
       offenses and certain sentencing provisions are subject to H.B. 86 sentencing
       amendments even though the subject offenses were committed prior to its
       effective date. As relevant here, Section 4 states, in relevant part:

       SECTION 4. The amendments to * * * division (A) of section 2929.14 of
       the Revised Code that are made in this act apply to a person penalized * * *
       under th[at] section[ ] on or after the effective date of this section and to a
       person to whom division (B) of section 1.58 of the Revised Code makes the
       amendments applicable.
Thomas I at ¶ 42-43. “In other words, if the provisions of H.B. 86 reduced the potential

sentence for an offense, then R.C. 1.58(B) gives offenders not yet sentenced the benefit of

the reduced sentence.” Thomas II at ¶ 14.

          {¶67}    Smith’s offense was committed January 8, 2006, when S.B. 2 was in

effect.    His conviction and sentencing occurred post H.B. 86.      The range for his offense

under S.B. 2 was three to ten years. The range under H.B. 86 is three to 11 years. Smith

was sentenced to ten years imprisonment which is within the S.B. 2 range. Sentencing

under H.B. 86 would not reduce the potential sentence for Smith’s offense. In essence,

H.B. 86 does not apply.

          {¶68} After reviewing the record, however, it is evident that the trial court did, in

fact, apply the H.B. 86 sentencing provisions in imposing Smith’s sentence. During the

sentencing hearing, the trial court explained that it found Smith “guilty of rape on Count

1, guilty of Count 2, rape, and guilty of kidnapping with [a] sexual motivation

[specification].     All are felonies of the first degree with the potential sentence of 3 to 11

years[.]” (Emphasis added.)       (Tr. 288.)

          {¶69} In imposing Smith’s sentence, the trial court should have applied the three to

ten year statutory range under S.B. 2, rather than the three to 11

year range under H.B. 86.       Nevertheless, Smith’s ten-year prison sentence is within the

S.B. 2 statutory range for felonies of the first degree. Had the trial court imposed an

11-year sentence, however, the sentence would be contrary to law.
       {¶70} Based on the foregoing analysis, we hereby instruct the trial court to apply

the three- to ten-year statutory range under S.B. 2, rather than the three- to 11-year

statutory range under H.B. 86, at resentencing.

 IV.   CONCLUSION

       {¶71}      The trial court erred in failing to merge the rape and kidnapping counts.

 A new hearing must be conducted where the state shall select the charge for which the

court will impose sentence.

       {¶72}    The convictions are affirmed, the sentences vacated, and the      matter is

remanded to the trial court for the limited purpose of resentencing pursuant to S.B. 2

consistent with this opinion.

       It is ordered that appellant and appellee share the 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.



__________________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
