[Cite as State v. Pore, 2012-Ohio-3660.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Patricia A. Delaney, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. William B. Hoffman, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00190
CHARLES ROSS PORE                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2011-
                                                   CR-0354

JUDGMENT:                                          Affirmed in part; reversed in part;
                                                   Remanded

DATE OF JUDGMENT ENTRY:                            August 13, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    JOHN N. MACKEY
PROSECUTING ATTORNEY                               306 Market Avenue North
BY: RONALD MARK CALDWELL                           Suite 1012
110 Central Plaza, S., Ste. 510                    Canton, OH 44702
Canton, OH 44702
[Cite as State v. Pore, 2012-Ohio-3660.]


Gwin, J.,

        {¶1}     Defendant-appellant Charles R. Pore [“Pore”] appeals from his convictions

and sentences in the Stark County Court of Common Pleas on one count of Rape with a

sexually violent predator specification and repeat violent offender specification, one

count of Kidnapping with a sexually violent predator specification, a sexual motivation

specification and repeat violent offender specification, one count of Aggravated

Burglary, with a repeat violent offender specification and one count of Notice of Change

of Address; Registration of New Address. Plaintiff-appellee is the State of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2}     Without being employed or having money, Pore approached his victim,

E.T. at her residence, which was for sale. Pore had ascertained that E.T. lived there

with a roommate, A. B. Pore inquired about the house, and E.T. told him to talk with

A.B. since she was the true owner of the house. When Pore called A.B., she told him to

go through the realtor, who was Deb McCracken. Pore called McCracken and gave her

a fake name (Mike Davis), and feinted interest in buying the house.

        {¶3}     On February 27, 2011, Pore came to the house in mid-afternoon and

found E.T. home alone. Pore told her that he wanted to leave some contact information,

so she let him into the house and led him to the kitchen, where Pore could write on a

table. Pore then asked her for a tissue as he had a runny nose, so she turned to get a

tissue. Pore then pull a steak knife, which he took from his girlfriend's kitchen, and

ordered E.T. to do what he told her to do and she would not get hurt.

        {¶4}     Pore next marched E.T. into a bedroom and ordered her to take off her

clothes and get naked. Once she complied, Pore marched her to the front door of the
Stark County, Case No. 2011-CA-00190                                                     3


residence and had her lock the front door. Pore then led her back to the bedroom armed

with his knife. Pore then had E.T. get on the bed doggie-style first, and then on her

back, as he attempted to penetrate her vaginally with his penis. Before trying to enter

her, Pore used his finger to stimulate E.T.'s vagina in order to make entry easier.

According to Pore, however he was still unable to enter her, in part because E.T.

allegedly would not keep still. E.T. also kept asking Pore why he was doing this, and

asking him to leave. Pore claimed that he reassured the frightened woman by telling her

that he was not going to hurt her. After some 30 minutes, Pore finished and left the

home. He later threw away all of his clothing and the knife in a dumpster in the

neighborhood.

      {¶5}      According to the lab report prepared by a forensic scientist of the Canton-

Stark County Crime Laboratory, a semen sample was obtained from the rape kit

performed at Aultman Hospital. The results of a comparison analysis revealed:

                DNA typing was performed on the DNA samples prepared from the

      semen stained vaginal swabs and the dried blood standard of [E.T.]. The

      results were compared to the DNA profile of [E.T.].

                A mixture of DNA profiles from [E.T.] and a male individual was

      obtained from the vaginal swabs. The male DNA profile (semen source)

      could be distinguished at fifteen (15) STR loci. The probability of selecting

      an unrelated individual at random having the same fifteen (15) locus DNA

      profile      as    the    male    individual    is   approximately     1    in

      82,000,000,000,000,000.
Stark County, Case No. 2011-CA-00190                                                   4


             To a reasonable degree of certainty (excluding identical twins),

      Charles R. Pore is the source of the semen on the vaginal swabs.

      {¶6}   Pore was indicted on April 11, 2011. He was charged with one count of

Rape with a sexually violent predator specification and a repeat violent offender

specification; one count of Kidnapping with a sexual motivation specification, a sexually

violent predator specification and a repeat violent offender specification; one count of

Aggravated Burglary with a repeat violent offender specification; and one count of

Notice of Change of Address; Registration of New Address. Pore pled guilty as charged

on July 21, 2011 and was sentenced on August 3, 2011 as follows:

      {¶7}   Rape 10 years, sexually violent predator specification 15 years to life,

consecutive to Rape; repeat violent offender specification 8 years consecutive to Rape;

      {¶8}   Kidnapping 10 years, consecutive to Rape; sexual motivation specification

15 years to life-merged with the sexually violent predator specification (Rape); repeat

violent offender specification 8 years, consecutive to the Kidnapping and merged with

the repeat violent offender specification (Rape);

      {¶9}   Aggravated Burglary 10 years consecutive (Rape and Kidnapping); repeat

violent offender specification 8 years, consecutive to the Aggravated Burglary and

merged with the repeat violent offender specification (Rape);

      {¶10} Notice of Change of Address, 2 years consecutive to Rape, Kidnapping

and Aggravated Burglary.

      {¶11} The Court further imposed a sanction of 2 years for the violation of post-

release control to be served consecutive to all other counts.
Stark County, Case No. 2011-CA-00190                                                   5


       {¶12} Thus, the aggregate sentenced imposed is a total period of incarceration

of fifty-seven (57) years to life imprisonment. Pore was further designated as a Tier III

offender pursuant to R.C. 2950.01(G). Finally, Pore was ordered to serve mandatory

periods of post release control.

                                   ASSIGNMENTS OF ERROR

       {¶13} Pore raises four assignments of error,

       {¶14} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED MR. PORE TO

CONSECUTIVE SENTENCES ON COUNTS 1, 2 AND 3 OF THE INDICTMENT IN

VIOLATION OF R.C. 2941.25 - ALLIED OFFENSES OF SIMILAR IMPORT- AND THE

DOUBLE      JEOPARDY       CLAUSES      OF   THE      OHIO   AND     UNITED     STATES

CONSTITUTIONS.

       {¶15} “II. THE TRIAL COURT ERRED IN SENTENCING MR. PORE TO A

SENTENCE OF 57 YEARS TO LIFE IN VIOLATION OF THE EIGHTH AMENDMENT

OF THE CONSTITUTION OF THE UNITED STATES AND SECTION 9, ARTICLE I OF

THE    OHIO    CONSTITUTION,        WHICH    PROHIBITS       CRUEL    AND     UNUSUAL

PUNISHMENT.

       {¶16} “III. THE TRIAL COURT ABUSED IT DISCRETION IN SENTENCING MR.

PORE TO 57 YEARS TO LIFE IMPRISONMENT IN VIOLATION OF MR. PORE'S

RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

       {¶17} “IV. THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL GUARANTEED BY THE CONSTITUTIONS OF THE

UNITED STATES AND THE STATE OF OHIO.”
Stark County, Case No. 2011-CA-00190                                                  6


                                               I.

      {¶18} In Pore’s first assignment of error, he argues that his sentences for Rape,

Aggravated Burglary and Kidnapping are contrary to law, as the crimes are allied

offenses of similar import, pursuant to R.C. 2941.25.

      {¶19} R.C 2941.25, Multiple counts states:

              (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.

      {¶20} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent

that it calls for a comparison of statutory elements solely in the abstract under R.C.

2941.25.” The Court was unanimous in its judgment and the syllabus, “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. (State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not
Stark County, Case No. 2011-CA-00190                                                   7

agree on how the courts should apply that syllabus holding. The Johnson case lacks a

majority opinion, containing instead two plurality opinions, and a separate concurrence

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-

1147, ¶71 (DeGenaro, J., concurring in part and dissenting in part).

      {¶21} Justice Brown’s plurality opinion sets forth a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

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

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988).

Conversely, if the commission of one offense will never result in the commission of the

other, the offenses will not merge. Johnson at ¶ 51.

      {¶22} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in

judgment only). If so, the offenses are allied offenses of similar import and must be

merged. Johnson 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.

      {¶23} Under Justice Brown’s plurality opinion in Johnson, “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.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather,
Stark County, Case No. 2011-CA-00190                                                 8


the court simply must ask whether the defendant committed the offenses by the same

conduct. Id.

       {¶24} Justice O'Connor's plurality opinion advocates that the proper inquiry

under R.C. 2941.25(A) is not whether the two offenses can be committed with the same

conduct, but whether the convictions “arose from the same conduct that involves similar

criminal wrongs and similar resulting harm.” Johnson at ¶ 70 (O'Connor, J., concurring

in judgment.) The O'Connor plurality also notes that this determination should be aided

by a review of the evidence adduced at trial. Id. at ¶ 68–69, 942 N.E.2d 1061. State v.

Helms, 2012-Ohio-11467, ¶ 79.

       {¶25} Justice O'Donnell's separate concurrence, joined by Justice Lundberg

Stratton, sets forth a slightly different analysis,

               [T]he proper inquiry is not whether the elements align in the

       abstract as stated in Rance but, rather, whether the defendant's conduct,

       i.e., the actions and behavior of the defendant, results in the commission

       of two or more offenses of similar or dissimilar import or two or more

       offenses of the same or similar kind committed separately or with a

       separate animus as to each. See Black's Law Dictionary (9th Ed.2009)

       336 (“conduct” defined as “[p]ersonal behavior, whether by action or

       inaction”).

Johnson at ¶ 78 (O'Donnell, J., separately concurring.) State v. Helms, 2012-Ohio-

11467, ¶ 80-81.

       {¶26} As Judge DeGenaro from the Seventh District Court of Appeals has noted,
Stark County, Case No. 2011-CA-00190                                                 9


               While all three opinions focus on the conduct of the defendant,

       there are notable distinctions between them. The Brown plurality is still

       somewhat hypothetical in nature. The determination of “whether it is

       possible to commit one offense and commit the other with the same

       conduct,” still appears to require an abstract comparison. Johnson at ¶ 48

       (emphasis added). The O'Connor plurality directs the focus of the analysis

       back to the evidence adduced at trial, while also leaving open the

       possibility for some comparison of the elements of the offenses: “Rance,

       inasmuch as it requires a comparison of the elements of the offenses

       solely in the abstract, should be overruled.” Johnson at ¶ 68–69, 942

       N.E.2d 1061 (emphasis added). Justice O'Connor also returns to the

       language of the statute, parsing out the meaning of several key terms:

       “allied offenses” and “of similar import.” Id. at ¶ 65–68, 942 N.E.2d 1061.

       The O'Donnell concurrence emphasizes the importance of removing

       abstract comparisons from the merger analysis and shifts the focus of the

       test onto whether the two offenses were committed separately or with a

       separate animus. Johnson at ¶ 78–83, 942 N.E.2d 1061.

State v. Helms, 2012-Ohio-11467, ¶ 82 (DeGenaro, J., concurring in part and dissenting

in part).

       {¶27} We find that in the case at bar, the analysis utilized by the O’Donnell

concurrence to be the most appropriate. In fact, the O’Donnell concurrence utilized the

following illustration,
Stark County, Case No. 2011-CA-00190                                                 10


             Consider the crimes of rape and kidnapping, for example. The

      elements of each are different. Rape, as defined in R.C. 2907.02(A)(2), is

      committed when a defendant engages in sexual conduct with another and

      the defendant purposefully compels the other person to submit by force or

      threat of force. Kidnapping, as defined in R.C. 2905.01(A)(4), is committed

      when by force, threat, or deception, or, in the case of a victim under the

      age of 13 or mentally incompetent, by any means, a defendant removes

      another from the place where the other person is found or restrains the

      liberty of the other with the purpose to engage in sexual activity with the

      victim against the victim's will.

             Inevitably, every rapist necessarily kidnaps the victim, because the

      conduct of engaging in sexual conduct by force results in a restraint of the

      victim's liberty. Thus, in those circumstances, the conduct of the defendant

      can be construed to constitute two offenses—rape and kidnapping—and

      an indictment may contain counts for each, but the defendant may be

      convicted of only one.

             In a different factual situation, however, if the state presented

      evidence that a defendant lured a victim to his home by deception, for

      example, and then raped that victim, an indictment may contain separate

      counts for the rape and for the kidnapping. In this hypothetical, different

      conduct—the luring of the victim by deception and the separate act of

      rape—results in two offenses being committed separately; therefore, the

      indictments may contain counts for both offenses and the defendant may
Stark County, Case No. 2011-CA-00190                                                    11

      be convicted of both. See, e.g., State v. Ware (1980), 63 Ohio St.2d 84,

      17 O.O.3d 51, 406 N.E.2d 1112 (the defendant could be convicted of both

      kidnapping and rape because he lured the victim to his home by deception

      before raping her).

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶81-

81(O’Donnell concurring in judgment and syllabus)(Footnotes omitted).

      {¶28} In the case at bar, Pore was charged with Rape, as defined in R.C.

2907.02(A)(2), Kidnapping as defined in R.C. 2905.01(A)(4) and Aggravated Burglary

as defined in R.C. 2905.01(A)(4). In the case at bar we must determine whether the

actions and behavior of Pore results in the commission of two or more offenses of

similar or dissimilar import or two or more offenses of the same or similar kind

committed separately or with a separate animus as to each.

      {¶29} More than three decades ago, the Supreme Court of Ohio ruled that Rape

and Kidnapping are allied offenses of similar import. State v. Donald, 57 Ohio St. 2d 73,

386 N.E.2d 1391(1979), syllabus; State v. Henderson, 10th Dist. No. 06AP–645. The

Supreme Court laid out the requirements in order to determine what constitutes a

separate animus for Kidnapping and a related offense. Specifically, the Court stated:

             In establishing whether kidnapping and another offense of the

      same or similar kind are committed with a separate animus as to 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
Stark County, Case No. 2011-CA-00190                                                12


      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.

State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345(1979), syllabus.

      {¶30} In the case at bar, Pore armed himself with a knife and deceptively gained

entrance to E.T.’s home. Threatening E.T. with the knife, Pore moved E.T. from the

kitchen to the bedroom. He then ordered E.T. to remove her clothes. At that point, Pore

moved E.T. at knifepoint from the bedroom to the living room in order to lock the front

door. Pore then forced E.T. at knifepoint to return to the bedroom where the assault

occurred.

      {¶31} With respect to the charge of Aggravated Burglary, we find this crime was

complete when Pore deceptively gained entrance into the home. This act was separate,

distinct from the subsequent Rape and Kidnapping. Accordingly, under the facts of this

case Aggravated Burglary is not an allied offense of either Rape or Kidnapping. Thus,

Pore can be convicted and sentenced for Aggravated Burglary.

      {¶32} In State v. Logan, the Supreme Court found no separate animus to sustain

separate convictions for rape and kidnapping. 60 Ohio St.2d 126, 397 N.E.2d

1345(1979). In Logan, after the victim refused to accept some pills, the “defendant
Stark County, Case No. 2011-CA-00190                                                  13


produced a knife, held it to her throat, and forced her into an alley. Under such duress,

she accompanied him down the alley, around a corner, and down a flight of stairs,

where he raped her at knifepoint.” 60 Ohio St.2d. at 127, 397 N.E.2d 1345.

       {¶33} In State v. Price, the appellant asked the victim if she wanted to engage in

sexual intercourse. 60 Ohio St.2d 136, 398 N.E.2d 772(1979). The victim refused and

returned to the car. Id. The appellant pulled the victim from the backseat of the vehicle

to a nearby area where the appellant raped the victim. Id. “The force by which [the]

appellant removed [the victim] from the car to behind a nearby bush to engage in sexual

conduct, as required under the rape statute, is indistinguishable from the force by which

[the] appellant restrained [the victim] of her liberty, as required under the kidnapping

statute.” Id. at 143, 398 N.E.2d 772. The Supreme Court held the restraint and

asportation of the victim necessary to substantiate the kidnapping offense were not

distinct from the rape, either in time or function. Price at 143, 398 N.E.2d 772.

       {¶34} In State v. Ware, the victim was unable to find a telephone to request a

ride home from a party. 63 Ohio St.2d 84, 406 N.E.2d 112(1980). The appellant offered

the victim to use his telephone at his residence. Id. The victim accepted appellant's

invitation, and they began walking toward his home. After walking several blocks, they

hitchhiked a ride from a passing motorist, who dropped them off within a block of

appellant's residence. Shortly after they arrived, appellant laughed and stated that he

did not have a telephone, and began making advances toward the victim. When she

resisted, appellant picked her up, carried her upstairs to a bedroom and, under threats

of death, forced her to submit to vaginal and anal intercourse. Appellant thereafter

accompanied the victim back to her girlfriend's residence, a few blocks from where he
Stark County, Case No. 2011-CA-00190                                                   14


was subsequently apprehended by the police. Id. The Supreme Court began its analysis

by reviewing the decision in State v. Price,

              Price observes that the defendant's forcible asportation of his victim

       was to an area within close proximity of the initial confrontation, and was

       for the purpose of moving her to a place where the rape could be

       accomplished without detection. In essence, the court found the distance

       to be spatially insubstantial and the movement purely incidental to the

       singular purpose of committing a rape.

              The victim in the cause at bar was forcibly moved from the lower

       level of appellant's residence into the upstairs bedroom, and, if these were

       the only facts before the court, it could be necessary to reverse appellant's

       kidnapping conviction. However, R.C. 2941.25(B) provides for conviction

       for both kidnapping and rape where these “same or similar” offenses are

       committed separately.

              Under the facts at bar, we conclude that there was an act of

       asportation by deception which constituted kidnapping, and which was

       significantly independent from the asportation incidental to the rape itself.

       The two crimes were committed separately.

63 Ohio St.2d 84, 86-87, 406 N.E.2d 112(1980)(Citations omitted).

       {¶35} We are constrained to find Pore’s commission of the Kidnapping was

merely incidental to the Rape. The restraint and movement had no significance apart

from facilitating the Rape. No evidence exists in the record of substantial movement,

prolonged restraint, or secretive confinement. Logan, 60 Ohio St.2d 126, 397 N.E.2d
Stark County, Case No. 2011-CA-00190                                                     15


1345, at syllabus. We find the restraint did not subject the victim to a substantial

increase in the risk of harm separate from that involved in the underlying Rape.

Accordingly, we find it was plain error not to find the offenses of Rape and Kidnapping

to be allied offenses of similar import.

                                             II, III, IV

       {¶36} In light of our disposition of Pore’s first assignment of error, we find that

Pore’s second, third and fourth assignments of error are premature.

                                           CONCLUSION

       {¶37} In accordance with the Ohio Supreme Court's decision in State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25, we remand this case

to the trial court for further proceedings consistent with that opinion. This decision in no

way affects the guilty verdicts issued by the court. It only affects the entry of conviction

and sentence. All of Pore's convictions are affirmed.
Stark County, Case No. 2011-CA-00190                                               16


      {¶38} The judgment of the Stark County Court of Common Pleas is affirmed in

part; reversed in part; and the case is remanded for further proceedings to resentence

Pore in accordance with the law and this Opinion.

By Gwin, J., and

Hoffman, J., concur;

Delaney, P.J., dissents

                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. PATRICIA A. DELANEY


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN
WSG:clw 0720
Stark County, Case No. 2011-CA-00190                                                   17

Delaney, J., dissenting

      {¶39} I respectfully dissent from the majority opinion.

      {¶40} While there is no dispute that rape, in violation of R.C. 2907.02 (A)(2), and

kidnapping in violation of R.C. 2905.01(A)(4), may be allied offenses in some cases as

defined under the Johnson test, the critical issue is whether the crimes were committed

separately or with a separate animus for each offense. R.C. 2941.25.

      {¶41} At the sentencing hearing, the trial court heard from the state and defense

counsel, and reviewed both the victim’s and Pore’s recorded statements and medical

records. The majority opinion sets forth a recitation of those facts. Based upon these

facts, the trial court determined the crimes of aggravated burglary, kidnapping and rape

were committed with a separate animus.

      {¶42} Upon appeal, we review de novo the issue of whether Pore’s convictions

for rape and kidnapping merge as allied offenses of similar import. In Logan, supra, the

Ohio Supreme Court set forth the following guidelines to establish whether a kidnapping

and an offense of the same or similar import are committed with separate animus. I

disagree with the majority’s conclusion that, in applying the Logan guidelines, the

kidnapping in this case was merely incidental to the rape.

      {¶43} I would find the following factors set forth in Logan exist in this case: Pore

held the victim at knife point and moved the victim from one room to another, to wit:

from the kitchen to the bedroom, from the bedroom to the front door to lock it and

impede anyone from leaving or entering, and then back to the bedroom. This evidence

sufficiently demonstrates substantial movement which has significance beyond the

underlying offense (to prevent escape and detection) and was independent from the
Stark County, Case No. 2011-CA-00190                                                    18


rape. Moreover, the record also shows Pore, while in the bedroom initially, ordered the

victim to disrobe and then proceed to cut off her bra with the knife, therefore causing the

victim a substantial increase in risk of harm separate and apart from that involved in the

underlying rape.

      {¶44} Thus, I would find under the circumstances of this case, there was

substantial evidence that Pore committed the offenses of rape and kidnapping with a

separate animus. Therefore, the crimes were not allied offenses and the trial court’s

finding should be affirmed.

      {¶45} I would overrule the first assignment of error and address the remaining

assignments of error set forth by Pore.



                                          ______________________________
                                          JUDGE PATRICIA A. DELANEY
[Cite as State v. Pore, 2012-Ohio-3660.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
CHARLES ROSS PORE                                 :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00190




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed in part; reversed in part; and the

case is remanded for further proceedings to resentence Pore in accordance with the law

and this Opinion. Costs divided equally between the parties.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN
