[Cite as State v. Cargle, 2019-Ohio-1544.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28044
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-3685/1
                                                  :
 JAMES CARGLE                                     :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                              Rendered on the 26th day of April, 2019.

                                             ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, James Cargle, appeals from his conviction and

sentence in the Montgomery County Court of Common Pleas after a jury found him guilty

of rape, felonious assault, and three counts of kidnapping. In support of his appeal,

Cargle contends that there was insufficient evidence to support his felonious assault

conviction. Cargle also contends that his rape conviction and two of his kidnapping

convictions should have merged into a single conviction at sentencing pursuant to the

allied-offenses doctrine. For the reasons outlined below, the judgment of the trial court

will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On December 7, 2016, the Montgomery County Grand Jury returned a four-

count indictment charging Cargle and his co-defendants, Cassidy Lake and Jennifer Rice,

with rape in violation of R.C. 2907.02(A)(2), felonious assault in violation of R.C.

2903.11(A)(1), kidnapping to engage in sexual activity in violation of R.C. 2905.01(A)(4),

and kidnapping to facilitate a felony or flight thereafter in violation of R.C. 2905.01(A)(2).

Following his indictment, Cargle filed a motion to sever his case from that of his two co-

defendants. The trial court granted the motion to sever, thus permitting Cargle to be

prosecuted separately.     Thereafter, a second indictment was issued against Cargle,

charging him with kidnapping to terrorize in violation of R.C. 2905.01(A)(3).

       {¶ 3} On April 30, 2018, the matter proceeded to a five-day jury trial. At trial, the

State presented testimony from several witnesses and introduced over 90 exhibits. The

witnesses included, but were not limited to, the two victims, R.R. and A.M., and Cargle’s
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two co-defendants, Lake and Rice. The following is a summary of the pertinent witness

testimony.

        {¶ 4} R.R., the victim with respect to the kidnapping to terrorize charge, testified

that Cargle was her pimp while she worked as a prostitute between February and August

2016.     R.R. testified that she and Cargle also had an on-and-off-again sexual

relationship. R.R. claimed that she terminated her working relationship with Cargle after

he assaulted her and attempted to run her over with his car. Due to that assault, R.R.

pressed charges against Cargle. R.R. testified that Cargle became angry at her when

she refused to recant her statement to police.

        {¶ 5} Despite their tumultuous relationship, R.R. testified that she and Cargle

decided to meet for drinks in downtown Dayton, Ohio, on the night of November 25, 2016.

After having a few drinks, R.R. testified that she and Cargle went to a house on Sheridan

Avenue in Dayton. R.R. claimed that she had never been to the house before and that

Cargle said the house belonged to his aunt.

        {¶ 6} After arriving at the Sheridan Avenue residence, R.R. testified that she and

Cargle began kissing and “fooling around” in the bedroom.           During this time, R.R.

testified that two women with masks covering their faces stormed into the bedroom.

According to R.R., the two women tased her, maced her, and forced her down into the

basement. R.R. testified that, although she yelled for Cargle to get the two women off

her, Cargle made no real effort to help.

        {¶ 7} Once in the basement, the two women zip-tied R.R.’s wrists together and

forced R.R. into a large, wire dog cage. R.R. testified that the women also zip-tied her

already bound wrists to a chain that was attached to a dumbbell outside the cage. The
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two women then put a blanket over the cage and started playing loud, “menacing” music.

R.R. claimed that she was terrified and had no idea what was going on.

       {¶ 8} R.R. testified that four to five different women interacted with her during her

entrapment. R.R. claimed that the women kicked the cage countless times and that the

cage toppled over while she was trapped inside. R.R. also testified that when she had

to relieve herself, the women would remove the zip ties from her wrists and make her

urinate in a plastic cup. R.R. also specifically recalled a women asking her about the

contacts in her cell phone. R.R. testified that she was truthful about all of her contacts

except for the name of her child’s father. As a result of lying about her child’s father,

R.R. testified that the women took her out of the cage and beat her. As part of this

beating, R.R. testified that one of the women poured one of the urine-filled plastic cups

over her head.

       {¶ 9} After being trapped in the cage for two nights, R.R. noticed that the zip ties

around her wrists were not properly secured. This permitted R.R. to slip out of the zip

ties and free her hands. R.R. testified that, at that time, the cage was toppled over

against the wall and was no longer covered by the blanket. R.R. also testified that the

cage’s door was bent from the women kicking it, which allowed her to wriggle out of the

cage. Once she was out of the cage, R.R. was able to sneak out the backdoor of the

house. After escaping, R.R. contacted the police.

       {¶ 10} Although R.R. testified that the two women who initially accosted her wore

masks, R.R. was nevertheless able to recognize one of the women as Jennifer Rice.

Rice, a friend of Cargle’s, also testified at trial. As part of her testimony, Rice admitted

to being present when Cargle and R.R. arrived at the Sheridan Avenue residence on the
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night of November 25, 2016. Rice testified that, at that time, she was in the basement

of the residence smoking meth with her friend Sonja. Rice claimed that while she and

Sonja were in the basement, Cargle texted her instructions to grab R.R. from the bedroom

and to put R.R. in the basement. Rice admitted to following Cargle’s instructions.

          {¶ 11} Rice testified that she and Sonja went upstairs to the bedroom wearing

masks, pepper sprayed and fired a stun gun at R.R., and forced R.R. into a dog cage in

the basement. Once R.R. was in the cage, Rice testified that she and Sonja continued

to smoke meth in the basement while kicking the cage throughout the night.              Rice

testified that Sonja left the Sheridan Avenue residence the following morning and did not

return.

          {¶ 12} After Sonja left, Rice testified that Cassidy Lake and Lake’s friend Allison

arrived at the Sheridan Avenue residence. Lake, who also testified at trial, claimed that

the Sheridan Avenue residence belonged to her and her ex-boyfriend. Lake, however,

testified that she had swapped houses with Cargle and that she was actually living at

Cargle’s house in Riverside, Ohio. Lake testified that she went back to the Sheridan

Avenue residence on November 26, 2016, because she had an argument with her ex-

boyfriend. Lake claimed that when she arrived at the residence, she went down in the

basement with Rice and observed a girl, R.R., inside a dog cage that was covered by a

blanket.

          {¶ 13} Lake testified that Cargle was also at the Sheridan Avenue residence.

Lake claimed that Cargle told her R.R. was inside the cage because of money. Lake

also claimed that Cargle instructed her to ask R.R. about the contacts in her cell phone

so that he could extort money from one of the contacts. Lake testified that Cargle
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threatened her children and told her that, if she did not follow his instructions, he would

put her in the cage with R.R.

       {¶ 14} Lake and Rice both testified that the second victim, A.M., arrived at the

Sheridan Avenue residence on the night November 26th. A.M., who also testified at trial,

claimed that when she first arrived, Cargle threatened her and said that if she wanted to

see her daughter again, she would follow his instructions. Thereafter, A.M. went down

to the basement with Lake and Rice, who showed her R.R. in a dog cage. A.M. then

went back upstairs where Cargle handed her a list of names and told her to ask R.R. who

the names were and how R.R. knew them. A.M. testified that she followed Cargle’s

instructions because she was scared.

       {¶ 15} In following Cargle’s instructions, A.M. testified that she simply read the

names on Cargle’s list while Lake and Rice kicked and flipped the cage containing R.R.

A.M. also testified that Rice and Lake pulled R.R. out of the cage and started hitting and

kicking R.R. when R.R. did not provide the information Cargle wanted. Lake, however,

testified that all the women, including A.M., participated in kicking and flipping the cage.

Lake also testified that her friend Allison poured urine on R.R. and kicked R.R. in the face.

       {¶ 16} After R.R. refused to answer Cargle’s questions, the women went back

upstairs, and Cargle told A.M. it was her responsibility to watch R.R. for the night. Lake

and Cargle then went to sleep in the bedroom while A.M. and Rice stayed in the living

room, where they smoked and snorted meth. Lake testified that her friend Allison left the

Sheridan Avenue residence later that night and did not return. A.M. testified that she

stayed awake all night while everyone else was sleeping.

       {¶ 17} Lake and Rice testified that they woke up the next morning to Cargle yelling
                                                                                         -7-


and screaming because R.R. had escaped. A.M. also testified that Cargle was angry

and blamed her for R.R.’s escape. All three women testified that Cargle and Lake went

looking for R.R. in Lake’s maroon Pontiac Grand Prix while A.M. and Rice stayed behind

at the Sheridan Avenue residence. Lake and Rice testified that Cargle later contacted

Rice and instructed her and A.M. to meet up with him and Lake. Rice thereafter drove

A.M. to a detached garage located on Fountain Avenue in Dayton, where they met with

Cargle and Lake.

       {¶ 18} Once at the Fountain Avenue garage, A.M., Lake, and Rice testified that

Cargle shut the garage door and began yelling at A.M. for letting R.R. escape. A.M.

testified that Cargle then tackled her to the ground, grabbed her neck, sat on top of her,

and hit her all over her body. Lake similarly testified that Cargle picked A.M. up by the

neck and threw her to the ground. Rice also testified that Cargle punched A.M. in the

face and knocked her down. All three women testified that Cargle then threatened to

make Lake and Rice “bleed” if they did not make A.M. “bleed.” Rice and Lake both

admitted to beating A.M. in response to Cargle’s threat.

       {¶ 19} A.M., Lake, and Rice testified that, following this beating, Cargle picked up

a wooden board in the garage and used it to hit A.M. in the back of the head. A.M.

testified that the blow to her head caused her to see white and almost pass out. Rice

also testified that, after Cargle struck A.M. with the board, A.M.’s eyes rolled in the back

of her head and A.M. almost passed out. Lake also recalled A.M. falling to the floor after

the blow to her head.

       {¶ 20} After Cargle hit A.M. in the head with the board, Cargle instructed Lake and

Rice to strip A.M. naked. Lake and Rice complied with Cargle’s command because they
                                                                                          -8-


were afraid of what he might do to them. After Lake and Rice stripped A.M. naked,

Cargle poured antifreeze on A.M. All three women testified that Cargle then ordered

Lake and Rice to tie A.M. up with a rope and to put her in the back of an SUV that was

parked in the garage.

         {¶ 21} Once A.M. was moved to the back of the SUV, Cargle handed Lake an

object, later identified as a rusty window weight, and ordered Lake to ram it inside A.M.’s

vagina while Rice held her down. A.M. testified that Cargle first told Lake to put the

window weight inside her rectum; however, when both Lake and Cargle were

unsuccessful in doing so, Cargle had Lake ram the window weight into her vagina multiple

times.

         {¶ 22} The three women testified that Cargle then ordered Lake and Rice to put

A.M. in the trunk of Lake’s Pontiac.      Still scared, Lake and Rice testified that they

complied with Cargle’s order. After placing A.M. in the trunk, Lake and Cargle drove

away in the Pontiac while Rice left the Fountain Avenue garage in a separate vehicle.

As Lake and Cargle drove from the garage, A.M. was able to free her hands and reach

the trunk release. A.M. testified that she pulled the trunk release, jumped out of the trunk,

and landed in the road, where she was assisted by bystanders who called 9-1-1.

         {¶ 23} A.M. was taken by ambulance to the hospital, where she was treated for

several abrasions, road rash, and a severe head injury. A.M. testified that she had

gashes in the back, front, and side of her head that required approximately 100 staples.

A.M. testified that the injury to the back of her head was where Cargle had struck her with

the wooden board. An examination by a sexual assault nurse examiner further revealed

that A.M.’s vagina and rectum were severely red and swollen and that A.M. had blood
                                                                                             -9-


pooled in her vaginal vault.

       {¶ 24} After being treated at the hospital, A.M. directed police officers to the

Fountain Avenue garage where her assault took place. Once at the garage, the officers

discovered multiple containers of antifreeze, several 1x4 wooden boards, and a set of

cast-iron window weights. Forensic testing revealed that A.M.’s DNA was present on

one of the window weights discovered in the garage.

       {¶ 25} Following the presentation of the State’s case, the defense did not call any

witnesses. The jury deliberated and found Cargle guilty of all five offenses charged in

the indictments. The trial court then determined that Cargle’s convictions for rape and

kidnapping to engage in sexual activity were allied offenses of similar import that merged

for purposes of sentencing.      The State elected to have Cargle sentenced for rape.

Following the State’s election, the trial court sentenced Cargle to 11 years in prison for

rape, 11 years for kidnapping to facilitate a felony or flight thereafter, 8 years for felonious

assault, and 11 years for kidnapping to terrorize. The trial court ordered all of Cargle’s

sentences to be served consecutively for a total term of 41 years in prison. Cargle was

also designated both a Tier II and a Tier III sex offender.

       {¶ 26} Cargle now appeals from his conviction and sentence, raising two

assignments of error for review.



                                 First Assignment of Error

       {¶ 27} Under his First Assignment of Error, Cargle contends that the State

presented insufficient evidence to support his conviction for felonious assault because

the State failed to present evidence establishing that he caused A.M. serious physical
                                                                                         -10-


harm. We disagree.

       {¶ 28} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

       {¶ 29} Pursuant to R.C. 2903.11(A)(1), a person commits felonious assault when

he or she “knowingly * * * [c]ause[s] serious physical harm to another[.]” The term

“serious physical harm” includes “[a]ny physical harm that involves some permanent

incapacity, whether partial or total, or that involves some temporary, substantial

incapacity[.]” (Emphasis added.) R.C. 2901.01(A)(5)(c).

       {¶ 30} “Temporary    unconsciousness      constitutes   a   temporary    substantial

incapacity, and therefore serious physical harm.” (Citations omitted.) State v. Booker,

2d Dist. Montgomery No. 22990, 2009-Ohio-1039, ¶ 16. Accord State v. Holley, 2d Dist.

Montgomery No. 27115, 2017-Ohio-7430, ¶ 54.           “[B]eing rendered unconscious, no

matter how brief, qualifie[s] as a ‘temporary substantial incapacity,’ which satisfie[s] the

serious physical harm requirement.” State v. Spaulding, 2017-Ohio-7993, 98 N.E.3d
                                                                                          -11-

1057, ¶ 13 (6th Dist.), citing State v. Sales, 9th Dist. Summit No. 25036, 2011-Ohio-2505,

¶ 19.

        {¶ 31} In State v. Polhamus, 2d Dist. Montgomery No. 172832, 1999 WL 1124605

(June 18, 1999), this court found that a victim suffered “serious physical harm” under

circumstances where the victim was rendered briefly unconscious after he was struck in

the head with the handle of a sledge hammer. Id. at *4. The blow to the victim’s head

caused the victim to suffer a gash that required 12 stitches to close. Id.

        {¶ 32} Similarly, in State v. Nolan, 2d Dist. Montgomery No. 12114, 1991 WL

97788 (June 5, 1991), this court found “serious physical harm” where a head injury

caused the victim to be “stunned and uncertain as to whether or not he would maintain

consciousness.” Id. at *4. The victim’s head injury was the result of him striking his

head on pavement after the defendant threw him to the ground.                Id.   The victim

sustained abrasions and a laceration above his eye that required six stiches. Id. The

victim also had to convalesce at home for nine days, during which the victim suffered

severe headaches. Id.

        {¶ 33} In this case, A.M., Lake, and Rice testified that in addition to Cargle

instructing Lake and Rice to beat and rape A.M., Cargle himself poured antifreeze on

A.M. and hit A.M. on the back of the head with a wooden board. A.M. testified that the

blow to her head “about knocked her out” and that “everything went white like [she] was

going to pass out.” Tr. p. 329. Lake testified that A.M. “fell to the floor” after Cargle hit

her. Tr. p. 667. Rice further testified that A.M.’s “eyes rolled back in her head and she

was almost passed out.” Id. at 617-618.

        {¶ 34} When describing her injuries, A.M. testified that her “head was gas[h]ed
                                                                                          -12-


open in the back and the side and in the front.” Tr. p. 341. As a result of the gashes,

A.M. testified that she had to have five staples put in the back of her head, two in the front

of her head, and approximately 100 on the side of her head. A.M. indicated that the

staples remained in her head for approximately one month until they were removed by a

medical professional.

        {¶ 35} Although it could be argued that the severity of A.M.’s head injury was

exacerbated when she jumped out of the trunk of a moving car, A.M. specifically testified

that the injury to the back of her head was where Cargle had struck her with the wooden

board. The jury, as the trier of fact in this case, was free to believe some, all, or none of

A.M.’s testimony. State v. Watson, 2d Dist. Montgomery No. 26347, 2015-Ohio-4517,

¶ 36. This includes A.M.’s testimony regarding the cause of the injury to the back of her

head.

        {¶ 36} The fact that A.M. had to have staples put in the back of her head where

Cargle hit her with the board corroborates A.M.’s testimony and indicates that the head

wound was quite severe. The severity of A.M.’s head wound was depicted in State’s

Exhibit Nos. 13 and 14. These two exhibits were photographs that were taken at the

hospital where A.M. was treated. The photographs showed the bloodied, stapled gash

in the back of A.M.’s head. The photographs also showed that almost all of A.M.’s

bleached blonde hair was stained red and matted with blood from the wound.

        {¶ 37} When viewing the evidence in a light most favorable to the State, we find

that the immense loss of blood, the necessity for staples, and the testimony indicating

that A.M. saw white and fell to the ground with her eyes rolling in the back of her head

sufficiently indicated that A.M. suffered serious physical harm as a result of Cargle hitting
                                                                                        -13-


her on the head. Although the testimony did not indicate that the blow rendered A.M.

completely unconscious, it did indicate that, for a brief period, A.M. was substantially

incapacitated. We find that this sufficiently evidenced serious physical harm as defined

by R.C. 2901.01(A)(5)(c). Therefore, the State did not fail to present evidence of serious

physical harm, and a rational factfinder could have found the essential elements of

felonious assault proven beyond a reasonable doubt.

      {¶ 38} Cargle’s First Assignment of Error is overruled.



                             Second Assignment of Error

      {¶ 39} Under his Second Assignment of Error, Cargle contends that his convictions

for rape, kidnapping to engage in sexual activity, and kidnapping to facilitate a felony or

flight thereafter should have merged into a single conviction at sentencing pursuant to the

allied-offenses doctrine. We disagree.

       {¶ 40} We review allied-offenses determinations de novo.         State v. Harmon,

2017-Ohio-8106, 98 N.E.3d 1238, ¶ 59 (2d Dist.), citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. “De novo appellate review means that

this court independently reviews the record and affords no deference to a trial court’s

decision.” (Citation omitted.) State v. Kennedy, 2d Dist. Clark No. 2017-CA-100, 2018-

Ohio-4997, ¶ 35.

       {¶ 41} Ohio’s allied offenses statute, R.C. 2941.25, 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
                                                                                           -14-


       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.

       {¶ 42} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Supreme Court of Ohio held that if a defendant’s conduct supports multiple offenses, the

defendant can be convicted of all of the offenses if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import; (2) the conduct shows the offenses were

committed separately; or (3) the conduct shows the offenses were committed with

separate animus. Id. at paragraph three of the syllabus and ¶ 31.

       {¶ 43} The term animus means “purpose or, more properly, immediate motive.”

State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). “Where an individual’s

immediate motive involves the commission of one offense, but in the course of committing

that crime he must, [a] priori, commit another, then he may well possess but a single

animus, and in that event may be convicted of only one crime.” Id. at 131.

       {¶ 44} As previously noted, Cargle contends that his convictions for rape,

kidnapping to engage in sexual activity, and kidnapping to facilitate a felony or flight

thereafter should have merged pursuant to the allied-offenses doctrine. This court has

noted that “[a]ll rapes inherently involve a restraint on the liberty of another, and where

the act of rape is the sole unlawful exercise of restraint on the physical liberty of another

person, the law is clear that any accompanying kidnapping charge should merge with the
                                                                                           -15-

rape charge.” State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, ¶ 32,

citing Logan.

       {¶ 45} However, in Logan, the Supreme Court of Ohio held that a separate animus

for kidnapping exists where (1): “the restraint is prolonged, the confinement is secretive,

or the movement is substantial so as to demonstrate a significance independent of the

other offense,” or (2) “the asportation or restraint of the complainant subjects the

complainant to a substantial increase in risk of harm separate and apart from that involved

in the underlying crime.”      Logan at syllabus.       Accord State v. Rucker, 2d Dist.

Montgomery No. 24340, 2012-Ohio-4860, ¶ 52.

       {¶ 46} “Although Logan predates Ruff, Ohio courts continue to apply the guidelines

set forth in Logan in determining whether kidnapping and another offense were committed

with a separate animus, in accordance with the third prong of the Ruff test.” (Citations

omitted.) State v. Sowers, 2d Dist. Clark No. 2018-CA-58, 2019-Ohio-649, ¶ 18. The

guidelines in Logan are also reasonable considerations for determining whether the

defendant committed kidnapping as separate conduct from other offenses. State v.

Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 13, citing State v. Ware, 63

Ohio St.2d 84, 406 N.E.2d 1112 (1980).

       {¶ 47} Cargle contends his convictions for rape, kidnapping to engage in sexual

activity, and kidnapping to facilitate a felony or flight thereafter should have merged into

one conviction because they were all based upon the same conduct, i.e., the rape of A.M.

While the trial court did merge Cargle’s convictions for rape and kidnapping to engage in

sexual activity, the trial court did not merge Cargle’s conviction for kidnapping to facilitate

a felony or flight thereafter. The trial court did not to merge that offense with either the
                                                                                           -16-


rape or kidnapping to engage in sexual activity offense because the trial court found that

Cargle had A.M. placed in the back of the trunk for purposes of facilitating his flight after

the rape.

       {¶ 48} We note that “[t]o convict a defendant of kidnapping in violation of R.C.

2905.01(A)(2), the kidnapping must either be done to facilitate the felony or to facilitate

the flight after the felony.”   (Citation omitted.)   State v. Bentz, 2017-Ohio-5483, 93

N.E.3d 358, ¶ 113 (3d Dist.). As noted in Bentz:

              The element of flight under R.C. 2905.01(A)(2) has not been

       addressed in any depth. * * * As such, looking to the definition of “flight” in

       Black’s Law Dictionary as well as the definition of “flight” applied in the jury-

       instruction arena are informative on the issue.

              Black’s Law Dictionary defines “flight” as “[t]he act or an instance of

       fleeing, esp. to evade arrest or prosecution.” Black’s Law Dictionary 756

       (10th Ed. 2014).     Similarly, in the jury-instruction arena, “[f]light means

       some escape or affirmative attempt to avoid apprehension.”              State v.

       Robinson, 1st Dist. Hamilton No. C-060434, 2007-Ohio-2388, ¶ 19, citing

       State v. Brundage, 1st Dist. Hamilton No. C030632, 2004-Ohio-6436, ¶ 17.

       The purpose of a flight instruction is to show that a defendant had a

       conscious awareness of his guilt because the defendant departed the crime

       scene under circumstances suggesting that his movement was motivated

       by a consciousness of guilt. See State v. Taylor, 78 Ohio St.3d 15, 27, 676

       N.E.2d 82 (1997). See also State v. Wilson, 3d Dist. Allen No. 1-09-64,

       2010-Ohio-2294, ¶ 9. “[T]he ‘ “mere departure from the scene of the crime
                                                                                          -17-


       is not to be confused with deliberate flight from the area in which the suspect

       is normally to be found.” ’ ” State v. Shepherd, 8th Dist. Cuyahoga No.

       102951, 2016-Ohio-931, ¶ 23, quoting State v. Santiago, 8th Dist.

       Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30, quoting State v. Norwood,

       11th Dist. Lake Nos. 96-L-089 and 96-L-090, 1997 WL 663423, *5 (Sept.

       30, 1997). To be considered a flight, “it must be clear that the defendant

       took affirmative steps to avoid detection and apprehension beyond simply

       not remaining at the scene of the crime.” Id., citing State v. Dunn, 8th Dist.

       Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 52.

Bentz at ¶ 114-115.

       {¶ 49} In this case, the record indicates that, after A.M. was tied up and raped in

the back of Cargle’s SUV, A.M. was forced into the trunk of Cassidy Lake’s Pontiac and

driven away from the scene. Since A.M. was forced into the trunk and driven away after

the rape was committed, there was a separate, unlawful restraint on A.M.’s physical

liberty apart from the rape itself.    The purpose of this separate, unlawful restraint

facilitated Cargle’s flight after the rape because it prevented A.M. from reporting the

incident to police. In other words, putting A.M. in the trunk and driving away from the

scene constituted an affirmative attempt by Cargle to avoid apprehension.

       {¶ 50} Furthermore, Lake testified that while she was driving with A.M. in the trunk,

Cargle told her that he had to think about where they were going because he was going

to have to kill A.M. See Tr. p. 671. This statement not only supported the conclusion

that Cargle restrained A.M. in the trunk to facilitate his flight after the rape, but also to

facilitate another felony, such as murder. “[T]he kidnapping statute [R.C. 2905.01(A)(2)]
                                                                                           -18-


does not require that the perpetrator commit the predicate felony; it requires only that the

victim be restrained or removed to facilitate its commission.” State v. Rice, 1st Dist.

Hamilton No. C-080444, 2009-Ohio-1080, ¶ 17. Such is the case here.

       {¶ 51} Because the asportation of A.M. in the trunk of Lake’s car occurred after the

rape was committed, Cargle’s offense of kidnapping to facilitate a felony or flight

thereafter was committed by separate conduct independent from the rape. Because the

asportation of A.M. in the trunk of Lake’s car was for purposes of facilitating Cargle’s flight

after the rape and his plan to kill A.M., it had a significance that was independent from the

rape itself. In other words, Cargle’s offense of kidnapping to facilitate a felony or flight

thereafter was committed with a separate animus. The fact that A.M. was subjected to

a substantial risk of increased harm also supported finding a separate animus. As the

record demonstrates, A.M. threw herself out of the trunk of a moving car to escape Cargle,

which resulted in injuries independent from the rape. Had A.M. not escaped as she did,

the record indicates that she would have likely been subjected to even greater harm by

Cargle.

       {¶ 52} Because the offense of kidnapping to facilitate a felony or flight thereafter

was committed by separate conduct and with a separate animus, the trial court properly

refused to merge the offense of kidnapping to facilitate a felony or flight thereafter with

the rape offense or the kidnapping to engage in sexual activity offense.

       {¶ 53} Cargle’s Second Assignment of Error is overruled.



                                        Conclusion

       {¶ 54} Having overruled both assignments of error raised by Cargle, the judgment
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of the trial court is affirmed.



                                  .............



FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
Robert Alan Brenner
Hon. Richard Skelton
