[Cite as State v. Chidester, 2014-Ohio-1597.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :    Hon. Sheila G. Farmer, J.
                                                :    Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :    Case Nos. CT2013-0048
BROCK CHIDESTER                                 :              CT2013-0049
                                                :
        Defendant-Appellant                     :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case Nos. CR2013-0087 &
                                                     CR2013-0115



JUDGMENT:                                            Affirmed (Case No. CT2013-0048)
                                                     Reversed (Case No. CT2013-0049)




DATE OF JUDGMENT:                                    April 14, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT SMITH                                         WILLIAM T. CRAMER
27 North Fifth Street                                470 Olde Worthington Road
Zaneville, OH 43701                                  Suite 200
                                                     Westerville, OH 43082
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                  2

Farmer, J.

      {¶1}   On April 17, 2013, the Muskingum County Grand Jury indicted appellant,

Brock Chidester, on one count of felonious assault in violation of R.C. 2903.11, one

count of domestic violence in violation of R.C. 2919.25, one count of kidnapping in

violation of R.C. 2905.01, and one count of abduction in violation of R.C. 2905.02 (Case

No. CR2013-0087). Said charges arose from an incident involving appellant and his

wife, Jessica Chidester.

      {¶2}   On May 22, 2013, appellant was indicted on one count of bribery in

violation of R.C. 2921.02 and one count of violating a protection order in violation of

R.C. 2919.27. Said charges arose from appellant offering his wife financial incentives if

she dropped the prior charges (Case No. CR2013-0115).

      {¶3}   On July 24, 2013, appellant pled guilty to the felonious assault and

abduction counts in Case No. CR2013-0087, and the bribery count in Case No.

CR2013-0115.     The remaining counts were dismissed.       By entries filed August 29,

2013, the trial court sentenced appellant to an aggregate term of four years in prison in

Case No. CR2013-0087 and one year in prison in Case No. CR2013-0115. The trial

court ordered the one year term to be served consecutively to the four year term.

      {¶4}   Appellant filed an appeal in each case, and this matter is now before this

court for consideration. Assignments of error are as follows:

                                            I

      {¶5}   "THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE JEOPARDY

AND R.C. 2941.25 BY REFUSING TO MERGE KIDNAPPING AND FELONIOUS

ASSAULT."
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                      3


                                             II

       {¶6}   "THE    TRIAL     COURT      VIOLATED       DUE    PROCESS      AND     R.C.

2929.14(C)(4) BY FAILING TO MAKE THE REQUISITE STATUTORY FINDINGS TO

SUPPORT IMPOSING A CONSECUTIVE SENTENCE."

                                              I

       {¶7}   Appellant claims the trial court erred in refusing to merge the kidnapping

and felonious assault convictions (Case No. CR2013-0087). We disagree.

       {¶8}   At the outset, we note appellant pled guilty to abduction, not kidnapping.

       {¶9}   Appellant pled guilty to felonious assault in violation of R.C. 2903.11(A)(2)

which states: "No person shall knowingly do either of the following:***Cause or attempt

to cause physical harm to another or to another's unborn by means of a deadly weapon

or dangerous ordnance," and abduction in violation of R.C. 2905.02(A)(2) which states:

"No person, without privilege to do so, shall knowingly do any of the following:***By

force or threat, restrain the liberty of another person under circumstances that create a

risk of physical harm to the victim or place the other person in fear."

       {¶10} Appellant argues the trial court's refusal to merge the two convictions

violated R.C. 2941.25 which states the following:



              (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.
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                 4


              (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.



      {¶11} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, the

Supreme Court of Ohio 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." The Johnson court explained the following at ¶ 48-50:



              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
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                 5


      defendant constituting commission of one offense constitutes commission

      of the other, then the offenses are of similar import.

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

      50 (Lanzinger, J., dissenting).

             If the answer to both questions is yes, then the offenses are allied

      offenses of similar import and will be merged.



      {¶12} As clarified by the Supreme Court of Ohio in State v. Washington, 137

Ohio St.3d 427, 2013-Ohio-4982, ¶ 24: "We hold that when deciding whether to merge

multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire

record, including arguments and information presented at the sentencing hearing, to

determine whether the offenses were committed separately or with a separate animus."

      {¶13} The trial court chose not to merge the offenses based on the case of State

v. Hopkins, 10th Dist. Franklin No. 10AP-11, 2011-Ohio-1591. August 28, 2013 T. at 8.

The Hopkins case did not merge the offenses of felonious assault and abduction. In

Hopkins, the defendant believed his girlfriend was cheating on him. He proceeded to

beat his girlfriend for about an hour. "He punched her, kicked her in the head, and hit

her in the head with a wrench. When she tried to leave, he would not allow it. At the

conclusion of the prosecutor's recitation of these facts, the trial court inquired as to
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                   6

whether appellant had any objection to the facts. He did not." Hopkins at ¶ 7. The

Hopkins court determined the following at ¶ 8:



              In this appeal, appellant argues that the abduction only involved

       restraint incidental to the assault.      That is, appellant committed the

       attempted felonious assault and thereby committed the abduction. Based

       upon the facts recited by the prosecutor, we disagree. Again, according to

       the record, appellant engaged in conduct amounting to an attempted

       felonious assault during the hour-long beating.        Additionally, appellant

       restrained the liberty of the victim inasmuch as he did not allow her to

       leave when she tried. Therefore, based upon the circumstances of this

       matter, the offenses were not committed by the same conduct. The trial

       court did not err in refusing to merge the two offenses for purposes of

       sentencing.



       {¶14} We find the facts in the Hopkins case to be nearly identical to the facts sub

judice. Because appellant pled guilty to the felonious assault and abduction counts, we

only have before us the following pertinent recitation of the facts by the prosecutor to

which appellant did not object to (July 25, 2013 T. at 12):



              These    charges   stem    from    a   Muskingum     County   Sheriff's

       Department investigation into the complaint by Jessica Chidester that she

       had been restrained and assaulted by her husband during the early-
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                 7


      morning hours of April 12th. Investigation revealed that the couple were

      married, that the husband believed that she was cheating on him, and

      over the course of several hours during the course of that day he did

      restrain her from leaving the home and struck her several times, and at

      least on one occasion did wrap a T-shirt around her neck causing her to

      struggle for breath and pass out.

              The defendant was interviewed, did admit to the confrontation, and

      did indicate that he was concerned that his wife had been unfaithful and

      confronted her about it. He also admitted to the officer that he struck the

      victim, which he characterized no more than ten times. He initially denied

      wrapping a belt or T-shirt around her neck, but when confronted with

      photographs of her neck, he did admit that he wrapped a belt around her

      neck.



      {¶15} The presentence investigation report dated August 20, 2013 confirmed

these facts, and also noted that the assault started around 4:00 a.m., stopped when the

children woke up, and then continued after the children left for school. Around 9:00

a.m. when appellant went to bed, he made his wife "lay in bed with him and wrapped his

arms and legs around her so she could not leave." Once he awoke at 2:30 p.m., the

assault continued.

      {¶16} Appellant argues the abduction only involved restraint incidental to the

assault.   Based upon the facts as presented, we disagree.       Appellant engaged in

conduct amounting to felonious assault during the day-long beating.        Additionally,
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                 8


appellant restrained his wife's liberty, even while he was sleeping, not assaulting her.

We find the offenses were committed by separate conduct with a separate animus.

      {¶17} Upon review, we find the trial court did not err in not merging the two

counts.

      {¶18} Assignment of Error I is denied.

                                              II

      {¶19} Appellant claims the trial court erred in failing to make findings on

consecutive sentences under R.C. 2929.14(C)(4) (Case No. CR2013-0115). We agree.

      {¶20} In its entries filed August 29, 2013, the trial court sentenced appellant to

an aggregate term of four years in prison in Case No. CR2013-0087 and one year in

prison in Case No. CR2013-0115. The trial court ordered the one year term to be

served consecutively to the four year term.

      {¶21} R.C. 2929.14(C)(4) states the following:



             (4) If multiple prison terms are imposed on an offender for

      convictions of multiple offenses, the court may require the offender to

      serve the prison terms consecutively if the court finds that the consecutive

      service is necessary to protect the public from future crime or to punish

      the offender and that consecutive sentences are not disproportionate to

      the seriousness of the offender's conduct and to the danger the offender

      poses to the public, and if the court also finds any of the following:

             (a) The offender committed one or more of the multiple offenses

      while the offender was awaiting trial or sentencing, was under a sanction
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                                    9


       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of

       the multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender's conduct.

              (c) The offender's history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.



       {¶22} In its brief at 14, the state, although not specifically conceding the issue,

noted it agreed with appellant's recitation of the current status of the law on consecutive

sentencing, and deferred the issue to this court.

       {¶23} In reviewing the August 28, 2013 sentencing hearing transcript and the

August 29, 2013 entry in Case No. CR2013-0115, we find the trial court did not

reference R.C. 2929.14(C)(4) nor make any findings thereunder.              In sentencing

appellant to a one year consecutive sentence, the trial court merely stated: "In regards

to Case No. 0115, that case being a felony of the third degree, that case being bribery,

it wasn't bad enough that you committed the offense, but you tried to have it resolved by

attempting to bribe the victim in this case." August 28, 2013 T. at 10.

       {¶24} Upon review, we find the trial court erred in ordering the one year

sentence in Case No. CR2013-0115 to be served consecutively to the four year
Muskingum County, Case Nos. CT2013-0048 & CT2013-0049                       10


sentence in Case No. CR2013-0087 without making findings pursuant to R.C.

2929.14(C)(4).

      {¶25} Assignment of Error II is granted.

      {¶26} The judgment of the Court of Common Pleas of Muskingum County, Ohio

in Case No. CT2013-0048 is affirmed. The judgment in Case No. CT2013-0049 is

reversed for findings under R.C. 2929.14(C)(4).

By Farmer, J.

Hoffman, P.J. and

Baldwin, J. concur.




SGF/sg 3/14
