[Cite as State v. Stall, 2011-Ohio-5733.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 3-10-12

        v.

MALCOLM STALL,                                           OPINION

        DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 09-CR-0170

                        Judgment Reversed and Cause Remanded

                            Date of Decision: November 7, 2011




APPEARANCES:

        Geoffrey L. Stoll for Appellant

        Clifford J. Murphy for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, Malcom Stall (hereinafter “Stall”), appeals the

Crawford County Court of Common Pleas’ judgment denying his motion to merge

offenses as allied offenses of similar import. For the reasons stated herein, we

reverse.

       {¶2} The instant case is before us upon remand after the Ohio Supreme

Court vacated our original judgment in State v. Lee, et al., 190 Ohio App.3d 581,

2010-Ohio-5672, 943 N.E.2d 602 (hereinafter “Lee I”) for our application of State

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. State v. Stall,

128 Ohio St.3d 501, 2011-Ohio-1960, 946 N.E.2d 756.

       {¶3} We set forth the applicable facts and procedural history of the case in

Lee I and repeat those herein:

       {¶4} At approximately 11:00 p.m., Weese went to the back door and

knocked on the door. Mrs. Siclair got up, went to answer the back door, and saw a

young man (Weese) with a coat covering his mouth. Weese informed Mrs. Siclair

that he had a question for her, at which point Weese pushed the door open with

such force that it knocked Mrs. Siclair to the ground, causing her to hit her head on

the back of an end table and suffer a concussion. Additionally, Mrs. Siclair stated

that after she was pushed and hit her head on the end table, she was also punched



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in the face, which resulted in a cut to her head that required seven stitches at the

hospital.

       {¶5} Upon gaining entry in the house, Lee and Weese proceeded to search

the house for the $40,000 they believed was hidden in a freezer in the basement.

Meanwhile, Stall dragged Mrs. Siclair from the porch into the kitchen and

wrapped duct tape around her head to cover her mouth. Mrs. Siclair testified that

while searching the house, defendants repeatedly demanded that she disclose the

location of the money and drugs, and when she did not give them a location, she

was hit with a closed fist. In addition, Mrs. Siclair testified to the difficulty she

had breathing due to the duct tape, the pain from being struck repeatedly, along

with the fact that she suffers from COPD (chronic obstructive pulmonary disease).

During the entire home invasion, Mr. Siclair was asleep in a different room and,

because of a severe hearing disability, did not hear anything.

       {¶6} Eventually, after cutting the telephone cords to the house, defendants

left the home and took with them jewelry and drugs that they had found inside the

Siclairs’ house. Subsequent to defendants’ departure, Mrs. Siclair crawled her

way to where her husband was sleeping, woke him up, and used a cell phone to

call the police.




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        {¶7} On November 9, 2009, the Crawford County Grand Jury indicted all

three defendants with the following charges:1 aggravated burglary in violation of

R.C. 2911.11(A)(1), a felony of the first degree; aggravated robbery in violation of

R.C. 2911.01(A)(3), a felony of the first degree; and felonious assault in violation

of R.C. 2903.11(A)(1), a felony of the second degree. Stall was additionally

charged with kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first

degree. Lee was indicted in case No. 09-CR-0169 (appellate case No. 3-10-11),

Stall was indicted in case No. 09-CR-0170 (appellate case No. 3-10-12), and

Weese was indicted in case No. 09-CR-0179 (appellate case No. 3-10-13).

        {¶8} Defendants were arraigned on November 16, 2009. Defendants filed a

joint motion to continue their trials on January 8, 2010. Along with the motion to

continue, the motion also requested that the trial court issue an order precluding

convictions on the counts of aggravated robbery, felonious assault, and

kidnapping. Defendants argued in their motion that, pursuant to R.C. 2941.25, the

felonious assault and the kidnapping counts were allied offenses of similar import

to the aggravated robbery count; and therefore, as to these counts, they could only

be convicted of aggravated robbery. The state filed its response to defendants’



1
  Two of the defendants were indicted on additional counts for actions committed separately from the
October 2009 home invasion. Defendant Lee was also indicted on two additional counts, breaking and
entering and aggravated robbery, with respect to separate events that had taken place in September 2009.
Defendant Stall was also indicted on one unrelated count of possession of drugs.

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motion on January 11, 2010, claiming that the issue of merger could be

determined only at the sentencing phase of the trial.

       {¶9} On January 11, 2010, the trial court issued its order, denying the

portion of the motion that was seeking a continuance of the trial date. Thereafter,

on January 21, 2010, defendants appeared before the trial court, entered pleas of

guilty to the charges set forth in the indictments, and requested to reserve the right

to argue the issue of merger at sentencing. Entries of conviction were issued on

February 1, 2010.

       {¶10} On March 4, 2010, defendants filed their response to the state’s

memorandum in opposition to the merger. On that same date, the state filed its

brief on the merger issue, and on March 5, 2010, defendants filed their brief on the

same issue.

       {¶11} A hearing on the merger issue was held on March 5, 2010.

Defendant Lee, Mrs. Siclair, and Detective Chad Filliater testified at the hearing.

Following the presentation of the evidence, the trial court allowed defendants and

the state time to present their written closing arguments. Defendants and the state

filed their final briefs on March 15, 2010. Thereafter, on March 31, 2010, the trial

court issued its ruling, denying the motion to merge the offenses of felonious

assault and kidnapping with the offense of aggravated robbery.



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       {¶12} Defendants were sentenced on April 5, 2010, as follows: on the

aggravated burglary offense, Lee, Weese, and Stall were all sentenced to ten years

in prison; on the aggravated robbery offense, Lee, Weese, and Stall were all

sentenced to ten years in prison; on the felonious assault offense, Lee, Weese, and

Stall were all sentenced to eight years in prison; and Stall was sentenced to ten

years in prison on the kidnapping offense. All of defendants’ prison sentences,

including the additional unrelated sentences, were ordered to be served

consecutively.

       {¶13} On April 27, 2010, Stall filed a notice of appeal from the trial court’s

judgment entry of sentence and entry denying his motion for merger. (Doc. No.

32). On appeal, Stall presented the following assignment of error: “The trial court

erred in failing to hold that the offenses of aggravated robbery, felonious assault

and kidnapping were allied offense of similar import; requiring merger of the

offenses for purposes of sentencing.” (Appellants’ Brief at iii); Lee, 2010-Ohio-

5672, at ¶15. We ultimately held that the trial court did not err by failing to merge

Stall’s aggravated robbery and felonious assault convictions since the two offenses

were committed separately and with separate animus. Id. at ¶26.        However, we

held that the trial court did err by failing to merge Stall’s aggravated robbery and

kidnapping convictions since the kidnapping offense was not committed

separately or with separate animus from the aggravated robbery but was “merely

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incidental to the underlying crime,” relying upon the Ohio Supreme Court’s

decision in State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. Id. at ¶33.

        {¶14} Both the State of Ohio and Stall appealed our decision to the Ohio

Supreme Court.         The Ohio Supreme Court accepted the State’s discretionary

appeal, declined Stall’s discretionary appeal, vacated the portion of our previous

judgment entry pertaining to Stall, and remanded the case for our application of

State v. Johnson, 2010-Ohio-6314.                Consequently, the issue presented upon

remand is whether Stall’s aggravated robbery and kidnapping convictions were

allied offenses of similar import in light of State v. Johnson.2 Therefore, we now

will consider Stall’s original assignment of error with respect to the aggravated

robbery and kidnapping convictions only.

        {¶15} Whether offenses are allied offenses of similar import presents a

question of law we review de novo. State v. Brown, 3d Dist. No. 1-10-31, 2011-

Ohio-1461, ¶36, citing State v. Loomis, 11th Dist. No. 2002-A-0102, 2005-Ohio-

1103, ¶8.

        {¶16} R.C. 2941.25 is Ohio’s multiple-count statute, and provides:

        (A) Where the same conduct by defendant can be construed to
        constitute two or more allied offenses of similar import, the


2
  We did not apply Johnson in our original opinion since Johnson was decided on December 29, 2010 after
we released Lee I on November 22, 2010. Furthermore, we note that Stall filed a motion for
reconsideration under App.R. 26(A) on December 3, 2010, which we denied on December 22, 2010, again
prior to Johnson.

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       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.

       {¶17} In State v. Johnson, the Ohio Supreme Court examined R.C. 2941.25

in light of its previous allied offense case law and stated, in relevant part:

       {¶47} 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.

       {¶48} 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.

       {¶49} 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

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       447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,
       dissenting).

       {¶50} If the answer to both questions is yes, then the offenses are
       allied offenses of similar import and will be merged.

       {¶51} 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.

2010-Ohio-6314, at ¶¶47-51.

       {¶18} The offense of aggravated robbery is codified in R.C. 2911.01. R.C.

2911.01(A)(3), under which Stall was convicted, provides: “[n]o 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 * * *

[i]nflict, or attempt to inflict, serious physical harm on another.” The offense of

kidnapping is codified in R.C. 2905.01. R.C. 2905.01(A)(3), under which Stall

was convicted, provides: “[n]o person, by force, threat, or deception * * * shall

remove another from the place where the other person is found or restrain the

liberty of the other person * * * [t]o terrorize, or to inflict serious physical harm on

the victim or another[.]”

       {¶19} After Mrs. Siclair was knocked to the ground and punched in the face

(the felonious assault charge), defendants Lee and Weese began to search the

house for the money and drugs they believed were hidden in the basement freezer.

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During that time, Stall dragged Mrs. Siclair from the porch into the kitchen and

wrapped duct tape around her head to cover her mouth. After taping her mouth,

the defendants began asking Mrs. Siclair for the location of the money and drugs,

and when Mrs. Siclair would not respond, she was hit with a closed fist. After

reviewing the facts, we conclude that Stall’s conduct constituting an aggravated

robbery under R.C. 2911.01(A)(3) also constituted a kidnapping under R.C.

2905.01(A)(3). Johnson, 2010-Ohio-6314, ¶48. See, also, State v. Davis, 116 Ohio

St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶204, citing State v. Jenkins, 15 Ohio

St.3d 164, 198, 473 N.E.2d 264, fn. 29 and State v. Fears (1999), 86 Ohio St.3d

329, 344, 715 N.E.2d 136 (“a kidnapping is implicit within every aggravated

robbery.”)

      {¶20} After reviewing the facts, we are also still persuaded that Stall’s

conduct was “a single act, committed with a single state of mind”—that is Stall’s

conduct constituting the kidnapping offense was merely incidental to and in

furtherance of the aggravated robbery. Johnson, 2010-Ohio-6314, at ¶49, citing

Brown, 2008-Ohio-4569, at ¶50 (Lanzinger, J., dissenting). Our conclusion was

and still is supported by the Ohio Supreme Court’s decision in State v. Logan,

where the Court held:

      In establishing whether kidnapping and another offense of the
      same or similar kind are committed with a separate animus as to


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      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.

60 Ohio St.2d 126, syllabus. Mrs. Siclair’s restraint and movement from the front

porch of her house into her kitchen was incidental to the aggravated robbery.

Jenkins, 15 Ohio St.3d at 197 (kidnapping was incidental to robbery where

defendant, in the course of a bank robbery, aimed a firearm at certain individuals

and ordered others in the bank to move to the rear of the building). The restraint

was not prolonged beyond the time the defendants required to effectuate the

aggravated robbery, and the movement was minimal. State v. Winn, 173 Ohio

App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, ¶33 (moving victim from the

hallway to the bedroom was minimal). Furthermore, the movement of the victim

and her restraint did not subject her to a substantial increase in risk of harm

separate and apart from the aggravated robbery itself. Compare State v. Foust, 105

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Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶142 (separate animus existed

for kidnapping where victim’s leg was tied to a bathtub and the house set on fire);

State v. Hartman (2001), 93 Ohio St.3d 274, 280-81, 754 N.E.2d 1150 (separate

animus for kidnapping when victim had been tied to a bed, gagged, stabbed 138

times, strangled, and had had her throat slit).    For these reasons, we cannot

conclude that Stall committed the kidnapping offense with a separate animus

sufficient to support separate convictions.

       {¶21} It is important to note that Logan, upon which we relied in Lee I and

continue to rely upon here, was decided twenty years prior to State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which was overruled in Johnson,

supra. State v. O’Neil, 11th Dist. No. 2010-P-0041, 2011-Ohio-2202, ¶46 (“The

Johnson test reflects the approach followed by the Supreme Court of Ohio prior to

its decision in Rance. * * * Thus, the court’s decisions prior to Rance have

renewed relevance.”). The Ohio Supreme Court has cited Logan at least twenty

(20) times since its release, and we are not persuaded that Johnson affected

Logan’s continuing applicability. In fact, the Court of Appeals has continued to

apply Logan’s syllabus to determine whether aggravated robbery and kidnapping

convictions were committed with separate animus under Johnson. State v.

Howard, 1st Dist. No. C-100240, 2011-Ohio-2862, ¶¶57, 59; State v. Small, 5th

Dist. No. 10CAA110088, 2011-Ohio-4086, ¶¶86-95; State v. Pittman, 5th Dist.

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No. 10CAA110087, 2011-Ohio-4085, ¶49; State v. Hicks, 8th Dist. No. 95169,

2011-Ohio-2780, ¶¶11-21; State v. Walker, 8th Dist. No. 94875, 2011-Ohio-1556,

¶¶40-42; State v. Burton, 8th Dist. No. 94449, 2011-Ohio-198, ¶¶27-32; State v.

Sidibeh (10th Dist.), 192 Ohio App.3d 256, 2011-Ohio-712, 948 N.E.2d 995,

¶¶58-60; State v. McCullough, 12th Dist. Nos. CA2010-04-006, CA2010-04-008,

2011-Ohio-992, ¶20 (Logan appears to remain valid following Johnson).

       {¶22} Since Stall’s conduct constituted both an aggravated robbery and a

kidnapping and no separate animus exists to separately support the kidnapping

conviction, the trial court erred by failing to merge Stall’s kidnapping and

aggravated robbery convictions for purposes of sentencing under Johnson and

Logan, supra.

       {¶23} Stall’s assignment of error is, therefore, sustained to the extent

expressly stated herein.

                                                       Judgment Reversed and
                                                            Cause Remanded

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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