[Cite as State v. Jackson, 2013-Ohio-5371.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                   :
                                                       CASE NO. CA2013-04-037
        Plaintiff-Appellee,                      :
                                                               OPINION
                                                 :              12/9/2013
    - vs -
                                                 :

CHARLES R. JACKSON II,                           :

        Defendant-Appellant.                     :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2013CR00002



D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati,
Ohio 45202, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Charles R. Jackson II, appeals his sentence in the

Clermont County Court of Common Pleas for kidnapping and aggravated burglary.

        {¶ 2} Appellant was indicted in January 2013 on one count each of aggravated

burglary, aggravated robbery, kidnapping, and tampering with evidence. The state alleged

that around noon on December 27, 2012, appellant went to the residence of a New
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Richmond, Ohio woman, demanding money and "drugs." While in the house, appellant

ordered the victim to lie on the floor, threatened to shoot her if she did not comply with his

orders, tied her arms together behind her back, and tied her feet together with electrical tape.

While appellant was rummaging around in the victim's bedroom for valuables, the victim was

able to free one of her arms. Upon discovering that the victim had partially freed herself,

appellant tied her hands and feet in a hogtied position with a strand of Christmas lights. After

appellant left, and while still in the hogtied position, the victim used her feet to turn off the

stove which had been heating up her lunch. The victim remained in the hogtied position until

her son discovered her two hours later. The victim was 71 years old; appellant was 26 years

old and dating the victim's granddaughter. Appellant stole $200 from the victim.

       {¶ 3} On February 26, 2013, appellant pled guilty to one count of aggravated burglary

in violation of R.C. 2911.11(A)(1), and one count of kidnapping in violation of R.C.

2905.01(B)(2) (both first-degree felonies).      During the plea hearing, the parties orally

stipulated that both offenses were "considered for purposes of the plea at least to be

separate offenses which could result in a separate sentence on each case."

       {¶ 4} A sentencing hearing was held in March 2013. During the hearing, the state

argued that the aggravated burglary and kidnapping offenses should not be merged because

the aggravated burglary was committed and completed before the kidnapping. Defense

counsel remained silent on the issue. Based upon the facts presented regarding appellant's

conduct at the victim's residence, the trial court found that the offenses were not allied

offenses of similar import as "each offense was committed with a separate animus." The trial

court sentenced appellant to 11 years in prison for the aggravated burglary and 11 years in

prison for the kidnapping, and ordered that the sentences be served consecutively.

       {¶ 5} Appellant appeals, raising one assignment of error:

       {¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW IN SENTENCING
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APPELLANT.

       {¶ 7} Appellant first argues the trial court erred in sentencing him for both aggravated

burglary and kidnapping because the offenses are allied offenses of similar import.

       {¶ 8} At the outset, we note that appellant has waived all but plain error by failing to

raise any allied offense objection with the trial court. State v. Seymore, 12th Dist. Butler Nos.

CA2011-07-131 and CA2011-07-143, 2012-Ohio-3125, ¶ 18. However, the imposition of

multiple sentences for allied offenses of similar import amounts to plain error, whether

ordered to be served consecutively or concurrently. State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, ¶ 31. We will therefore review appellant's allied offense argument for

plain error. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14.

       {¶ 9} R.C. 2941.25 prohibits the imposition of multiple punishments for the same

criminal conduct and provides that:

              (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.

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

Court clarified the test used to determine whether offenses are allied offenses of similar

import under R.C. 2941.25. State v. Davis, 12th Dist. Butler No. CA2012-09-194, 2013-Ohio-

2637, ¶ 9. Under this test, courts must first determine "whether it is possible to commit one

offense and commit the other with the same conduct." (Emphasis sic.) Johnson at ¶ 48. It

is not necessary that the commission of one offense will always result in the commission of

the other. Id. Rather, the question is simply whether it is possible for both offenses to be
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committed by the same conduct. Id.

       {¶ 11} If it is possible to commit both offenses with the same conduct, courts must

next determine whether the offenses were in fact committed by the same conduct, that is, by

a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied

offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the

offenses are committed separately or with a separate animus, the offenses will not merge.

Id. at ¶ 51.

       {¶ 12} Appellant was charged with aggravated burglary in violation of R.C.

2911.11(A)(1).    The statute prohibits a person from trespassing by force, stealth, or

deception in an occupied structure with the purpose to commit within the structure a criminal

offense and inflicting, attempting to inflict, or threatening to inflict physical harm on another.

       {¶ 13} Appellant was also charged with kidnapping in violation of R.C. 2905.01(B)(2).

The statute prohibits a person from knowingly restraining another person's liberty by force,

threat, or deception under circumstances that create a substantial risk of serious physical

harm to the victim. The state concedes, and we have held, that it is possible to commit both

of these offenses with the same conduct. State v. Ozevin, 12th Dist. Clermont No. CA2012-

06-044, 2013-Ohio-1386, ¶ 12 (Ozevin was convicted of violating the same statutory

provisions as appellant).

       {¶ 14} We next determine whether appellant committed the offenses by way of a

single act with a single state of mind. In establishing whether kidnapping and another

offense of the same or similar kind are committed with a separate animus, the Ohio Supreme

Court adopted the following guidelines:

               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
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              significance independent of the other offense, there exists a
              separate animus as to each offense sufficient to support
              separate convictions;

              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.

State v. Logan, 60 Ohio St.2d 126 (1979), paragraph one of the syllabus. These guidelines

appear to remain valid in the wake of Johnson. Ozevin at ¶ 13. Additionally, the act of

aggravated burglary in violation of R.C. 2911.11(A)(1) is not complete until the offender

inflicts, attempts, or threatens physical harm to another. Seymore, 2012-Ohio-3125 at ¶ 24.

       {¶ 15} Here, the aggravated burglary and kidnapping offenses were committed by

separate acts. With regard to the aggravated burglary, the bill of particulars stated that

"[a]fter gaining access to her home, the defendant threatened to shoot [the victim] if she did

not comply with his commands." During the sentencing hearing, the state explained that

after appellant walked into the residence through the back door wearing a ski mask, and after

the victim refused to lie on the floor as ordered, appellant "told her, 'If you fight I can make it

worse. I can shoot you.'" As he said this, appellant "motioned his right hand toward his hip."

The victim "felt as if he had a gun so she complied with his commands." Accordingly,

appellant committed and completed the aggravated burglary when he gained access to the

victim's home and threatened her life. See Seymore.

       {¶ 16} The kidnapping, on the other hand, was committed after the completion of the

aggravated burglary when appellant first restrained the victim by separately tying her hands

and feet with electrical tape, when he continued to restrain her by tying her hands and feet

together in a hogtied position, and when he prolonged the restraint by not freeing her when

he left her house. As noted earlier, the victim remained in the hogtied position for two hours

until her son discovered her.
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       {¶ 17} The aggravated burglary and kidnapping offenses were also committed with

separate animus. As the trial court found, the restraint, which lasted for over two hours, was

prolonged and serious, "subjected the victim to a substantial increase of physical harm" (the

victim remained restrained in her house after appellant fled the scene and was hospitalized

as a result of her injuries), and "clearly increased her sense of terror, irrespective of [the]

initial invasion into the home." In addition, as we recently stated:

              [A]ppellant's immediate motive for prolonging his restraint of the
              victim's liberty could not have been the same as his motive for
              the commission of the aggravated burglary, which was
              completed when he threatened the victim * * *. Instead, the
              extent to which appellant prolonged his restraint of the victim's
              liberty * * * suggest[s] the separate animus of facilitating flight
              following appellant's other felonies or concealing his criminal
              wrongdoing.

State v. Schleehauf, 12th Dist. Clermont No. CA2012-11-079, 2013-Ohio-3204, ¶ 16. See

also State v. Ramirez, 12th Dist. Butler No. CA2010-11-305, 2011-Ohio-6531 (the prolonged

restraint was evidence of a separate animus for kidnapping where the overall ordeal suffered

by the victim at the hands of the defendant lasted one hour and 20 minutes).

       {¶ 18} We find that under the facts and circumstances of this case, the aggravated

burglary and kidnapping offenses are not allied offenses of similar import because the

offenses were committed separately and with a separate animus. Schleehauf. The trial

court, therefore, properly sentenced appellant for both offenses under Johnson, 2010-Ohio-

6314, and R.C. 2941.25.

       {¶ 19} As noted earlier, the parties also stipulated that the offenses were separate

offenses for which separate sentences could be imposed. There is authority that such a

stipulation may be considered by a sentencing court in resolving whether offenses are allied

offenses of similar import. State v. Rogers, 8th Dist. Cuyahoga Nos. 98292 and 98584

through 98590, 2013-Ohio-3235, ¶ 44 (indicating that prosecutors may "enter into a


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stipulation on what offenses are committed with separate conduct or a distinct animus"). In

view of our analysis above, we need not determine whether the parties' stipulation here is

dispositive of this issue.

        {¶ 20} Appellant also argues the trial court erred in imposing consecutive sentences

because the court failed to make the required statutory findings under R.C. 2929.14(C).

Appellant further asserts that given his substance abuse and mental health history and his

genuine remorse, it is clear the trial court "did not truly consider R.C. 2929.11 and R.C.

2929.12 before imposing a prison sentence."

        {¶ 21} We review appellant's consecutive sentences to determine whether the

imposition of those sentences is clearly and convincingly contrary to law. State v. Crawford,

12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6-7. A sentence is not clearly

and convincingly contrary to law where the record supports the trial court's findings under

R.C. 2929.14(C)(4) and where the trial court considers the purposes and principles of R.C.

2929.11, as well as the factors listed in R.C. 2929.12, properly applies postrelease control,

and sentences appellant within the permissible statutory range. See id. at ¶ 7, 9; R.C.

2953.08(G)(2).1

        {¶ 22} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Dillon,

12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. Specifically, the trial court must

find that (1) the consecutive sentence is necessary to protect the public from future crime or

to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public; and (3) one of

the following applies:


1. Appellant does not dispute that the trial court sentenced him within the statutory range, nor does he dispute
that the trial court properly applied postrelease control in this case.
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              (a) The offender committed one or more of the multiple offenses
              while the offender was awaiting trial or sentencing, was under a
              sanction 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.

R.C. 2929.14(C)(4); Crawford at ¶ 13.

       {¶ 23} The trial court is not required to give reasons explaining these findings, nor is

the court required to recite any "magic" or "talismanic" words when imposing consecutive

sentences. Crawford, 2013-Ohio-3315 at ¶ 14. However, it must be clear from the record

that the trial court actually made the required statutory findings. Id.

       {¶ 24} In imposing consecutive sentences, the trial court explicitly stated, "I do believe

that the consecutive structure is necessary to protect the public from future crime, but also to

punish." Continuing, the trial court further stated:

              I do not believe that the consecutive sentences are
              disproportionate to the seriousness of your conduct and the
              danger that you pose to the public. These were again part of
              separate acts, separate intents, and I do not believe that a single
              prison term for any of these offenses would adequately reflect
              the seriousness of the conduct in this particular case.

The trial court later memorialized these findings within its sentencing entry.

       {¶ 25} The trial court also noted the "great and unusual" harm resulting from the

offenses, based upon the fact that appellant "had been stalking" the victim because he knew

she was "incredibly vulnerable," the terror to which he subjected her both during his crimes


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and thereafter (the victim remained hogtied for over two hours until her son discovered her),

and the significant psychological harm the victim suffered and continues to suffer as a result

of appellant's crimes. The court stated, "it's beyond the pale what was done in this particular

case," and found "this case to be as serious as any case that I've seen short of someone

actually being killed."

       {¶ 26} Contrary to appellant's assertion, we find that the trial court properly complied

with the dictates of the newly amended R.C. 2929.14(C)(4) and made all the required

findings to support the imposition of consecutive sentences. See State v. Smith, 12th Dist.

Clermont No. CA2012-01-004, 2012-Ohio-4523. The trial court, therefore, did not err by

imposing consecutive sentences.

       {¶ 27} With regard to R.C. 2929.11 and 2929.12, contrary to appellant's claim, the

sentencing entry specifically states that the trial court "reviewed and considered the purposes

and principles of sentencing under R.C. 2929.11 and 2929.12" before reaching its decision.

The trial court also considered appellant's presentence investigation report and a sentencing

memorandum submitted by defense counsel, and allowed appellant to present mitigating

evidence during the sentencing hearing. As discussed above, the trial court considered the

serious nature of the offenses. It also rejected appellant's explanation that his crimes were

fueled by drugs.

       {¶ 28} In light of the foregoing, we find that the trial court did not err in sentencing

appellant to 22 years in prison for aggravated burglary and kidnapping.            Appellant's

assignment of error is overruled.

       {¶ 29} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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