[Cite as State v. McLaughlin, 2019-Ohio-1583.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                      Hon. Patricia A. Delaney, J.
                                                 Hon. Earle E. Wise, Jr., J.
 -vs-
                                                 Case No. CT2018-0055
 KENNETH McLAUGHLIN

        Defendant-Appellant                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Muskingum County
                                                 Court of Common Pleas, Case No.
                                                 CR2017-0296



 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         April 22, 2019


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 MICHAEL HADDOX                                  JAMES A. ANZELMO
 Muskingum County Prosecutor                     Anzelmo Law
                                                 446 Howland Drive
 TAYLOR P. BENNINGTON                            Gahanna, Ohio 43230
 Assistant Prosecuting Attorney
 27 North Fifth Street, 2nd Floor
 Zanesville, Ohio 43702
Muskingum County, Case No. CT2018-0055                                                        2

Hoffman, P.J.
       {¶1}   Appellant Kenneth McLaughlin appeals the judgment entered by the

Muskingum County Common Pleas Court re-sentencing him to fifteen years incarceration

for aggravated robbery (R.C. 2911.01(A)(1)), felonious assault with a firearm specification

(R.C. 2903.11(A)(2), R.C. 2941.145), kidnapping with a firearm specification (R.C.

2905.01(A)(2), R.C. 2941.141), theft of firearms (R.C. 2913.02(A)(1) ) and theft of an

elderly victim (R.C. 2913.02(A)(1) ). Appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Before 3:00 a.m. on August 24, the 87–year–old victim woke up to use the

bathroom. He did not have his hearing aids in his ears. While sitting on the toilet, he

realized there was a person in the bathroom talking to him, but he could not hear what

the person was saying. He described the person, later identified as Appellant, as a white

male with a bandana on his face. Appellant had a knife which he waved at the victim.

Appellant continued to yell and talk at the victim, who could not hear what Appellant was

saying.

       {¶3}   Appellant took the victim from the toilet, walked him to a chair in the living

room, and told the victim to sit in the chair. Appellant tied the victim's feet with an electric

extension cord and pushed the chair, with the victim in it, to the bedroom. The chair would

not fit through the bedroom door, so Appellant took the victim out of the chair, placed him

on the bed, and pushed him backwards.

       {¶4}   Appellant yelled at the victim, asking for the keys to two safes in the

bedroom. Appellant tied the victim's hands together, and used packaging tape to cover

his mouth. Appellant found an AK47 on a gun rack, which he threatened to hit the victim

with unless he was given the keys to the safe.
Muskingum County, Case No. CT2018-0055                                                      3


       {¶5}   Appellant then took the butt of the rifle and hit the victim in the forehead.

The gun discharged into the ceiling. Appellant took six guns and a guitar from the house

and left.

       {¶6}   The victim waited until he believed Appellant was gone, then unbound his

hands and feet and drove to his son's house. He was so nervous and shaken he could

not pull the tape off his mouth, so he sat outside the house and honked his car horn until

his son came out.

       {¶7}   Family members identified Appellant as a possible suspect in the case. On

the garage floor of the home, police found a wallet and identification belonging to

Appellant.

       {¶8}    Appellant was indicted by the Muskingum County Grand Jury with one

count of aggravated burglary with a firearm specification, one count of aggravated robbery

with a firearm specification, one count of felonious assault with a firearm specification,

two counts of kidnapping with firearm specifications, one count of theft of firearms, and

one count of theft from an elderly victim. The State dismissed the charge of aggravated

burglary and the accompanying firearm specification, and one count of kidnapping with a

firearm specification, as well as the firearm specification attached to the charge of

aggravated robbery. Appellant entered a plea of guilty to the remaining charges.

       {¶9}   The trial court sentenced Appellant to six years incarceration for aggravated

robbery, two years incarceration for felonious assault with an additional three years

incarceration for the accompanying firearm specification, three years incarceration for

kidnapping with an additional one year for the firearm specification, twelve months

incarceration for theft of firearms, and twelve months incarceration for theft from an elderly
Muskingum County, Case No. CT2018-0055                                                 4


victim. The court ordered all sentences to be served consecutively except for the twelve

months for theft from an elderly victim which was to be served concurrently to the

remaining charges, for an aggregate term of sixteen years.

       {¶10} Appellant filed an appeal to this Court. We found plain error in failing to

merge the theft offenses and the aggravated robbery conviction. State v. McLaughlin,

5th Dist. Muskingum No. CT2017-0104, 2018-Ohio-2333, ¶22. We further found the

felonious assault conviction did not merge with the convictions for theft, aggravated

robbery, or kidnapping. Id. at ¶30. As to the issue of merger of the aggravated robbery

and kidnapping offenses, we found a reasonable probability of error existed and

remanded the issue to the trial for further hearing.

       {¶11} On remand, the court held a new sentencing hearing. At the hearing, the

State presented no additional facts, but argued the restraint of the victim subjected him

to an increased risk of harm separate and apart from the aggravated robbery, and he in

fact suffered such harm by way of the felonious assault. Tr. 12. The trial court agreed,

and declined to merge the two offenses. The court resentenced Appellant to six years

incarceration for aggravated robbery, two years incarceration for felonious assault with

an additional three years incarceration on the attached firearm specification, and three

years incarceration for kidnapping with an additional one year incarceration on the

attached firearm specification. The court ordered all sentences to run consecutively for

an aggregate prison term of fifteen years.

       {¶12} It is from the August 1, 2018 judgment of resentencing Appellant prosecutes

this appeal, assigning as error:
Muskingum County, Case No. CT2018-0055                                                5


             THE    TRIAL    COURT      ERRED      BY   FAILING      TO   MERGE

      MCLAUGHLIN’S        KIDNAPPING        AND     AGGRAVATED         ROBBERY

      OFFENSES, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF

      THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.



      {¶13} R.C. 2941.25 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.



      {¶14} In the syllabus of State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34

N.E.2d 892, the Ohio Supreme Court revised its allied-offense jurisprudence:



             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.
Muskingum County, Case No. CT2018-0055                                               6


           2. Two or more offenses of dissimilar import exist within the meaning

     of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

     involving separate victims or if the harm that results from each offense is

     separate and identifiable.



     {¶15} The Court further explained:



           A trial court and the reviewing court on appeal when considering

     whether there are allied offenses that merge into a single conviction under

     R.C. 2941.25(A) must first take into account the conduct of the defendant.

     In other words, how were the offenses committed? If any of the following is

     true, the offenses cannot merge and the defendant may be convicted and

     sentenced for multiple offenses: (1) the offenses are dissimilar in import or

     significance—in other words, each offense caused separate, identifiable

     harm, (2) the offenses were committed separately, or (3) the offenses were

     committed with separate animus or motivation.

           At its heart, the allied-offense analysis is dependent upon the facts

     of a case because R.C. 2941.25 focuses on the defendant's conduct. The

     evidence at trial or during a plea or sentencing hearing will reveal whether

     the offenses have similar import. When a defendant's conduct victimizes

     more than one person, the harm for each person is separate and distinct,

     and therefore, the defendant can be convicted of multiple counts. Also, a

     defendant's conduct that constitutes two or more offenses against a single
Muskingum County, Case No. CT2018-0055                                                 7


      victim can support multiple convictions if the harm that results from each

      offense is separate and identifiable from the harm of the other offense. We

      therefore hold that two or more offenses of dissimilar import exist within the

      meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

      offenses involving separate victims or if the harm that results from each

      offense is separate and identifiable.



      {¶16} Id. at ¶¶ 25–26.

      {¶17} The trial court's R.C. 2941.25 determination is subject to de novo review.

State v. Williams, 134 Ohio St.3d 482, 2012–Ohio–5699, 983 N.E.2d 1245, ¶ 12.

      {¶18} Appellant was convicted of aggravated robbery in violation of R.C.

2911.01(A)(1), which provides:



             (A) No 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 do any of the following:

             (1) Have a deadly weapon on or about the offender's person or under

      the offender's control and either display the weapon, brandish it, indicate

      that the offender possesses it, or use it[.]



      {¶19} Appellant was also convicted of kidnapping in violation of R.C.

2905.01(A)(2), which provides:
Muskingum County, Case No. CT2018-0055                                                  8


             (A) No person, by force, threat, or deception, or, in the case of a

      victim under the age of thirteen or mentally incompetent, by any means,

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

      restrain the liberty of the other person, for any of the following purposes:

             (2) To facilitate the commission of any felony or flight thereafter[.]



      {¶20} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), at the

syllabus, the Ohio Supreme Court established a framework to analyze whether

kidnapping and another offense were committed with a separate animus as to each

pursuant to R.C. 2941.25(B):



             (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.
Muskingum County, Case No. CT2018-0055                                                     9

       {¶21} Applying Logan, this Court found in State v. Small, 5th Dist. Delaware No.

10CAA110088, 2011–Ohio–4086, the defendant's commission of kidnapping was merely

incidental to aggravated burglary where he took the victims to another room and tied them

up in order to commit the aggravated burglary. The kidnapping was part and parcel of the

burglary, the restraint of movement had no significance apart from facilitating the

commission of the burglary, and the restraint did not subject the victims to a substantial

increase in the risk of harm separate from that involved in the underlying crime. Id. at ¶

95.

       {¶22} Based on this case law, this Court held on Appellant’s first appeal as

follows:



              The facts as set forth in the guilty plea transcript demonstrate a

       reasonable probability the offense of kidnapping was allied to the

       aggravated robbery charge. Appellant took the victim from the toilet, walked

       him to a chair in the living room, and told the victim to sit in the chair.

       Appellant tied the victim's feet with an electric extension cord and pushed

       the chair, with the victim in it, to the bedroom. The chair would not fit through

       the bedroom door, so Appellant took the victim out of the chair, placed him

       on the bed, and pushed him backwards. Appellant tied the victim's hands

       together, and used packaging tape to cover his mouth. During this time,

       Appellant yelled for the keys to the safe. The limited record before this court

       demonstrates a reasonable probability the kidnapping was part and parcel

       of the aggravated robbery and the restraint of the victim's movement had
Muskingum County, Case No. CT2018-0055                                                  10


       no significance apart from facilitating the commission of the aggravated

       robbery. Nor does the record demonstrate the restraint subjected the victim

       to a substantial increase in the risk of harm separate from that involved in

       the underlying crime.

              However, because appellant failed to raise this issue, the State was

       not placed on notice of a need to place in the record potential additional

       facts which might demonstrate the restraint of movement had significance

       apart from facilitating commission of the aggravated robbery, or the restraint

       subjected the victim to a substantial increase in the risk of harm separate

       from that involved in the underlying crime. We therefore remand to the trial

       court for further hearing on the issue of whether the kidnapping conviction

       should merge with the aggravated robbery conviction.



       {¶23} State v. McLaughlin, 5th Dist. Muskingum No. CT2017-0104, 2018-Ohio-

2333, ¶¶ 26-27.

       {¶24} Appellant argues because the State failed to present any additional facts to

demonstrate the restraint of movement had significance apart from facilitating the

commission of the aggravated robbery, based on our earlier opinion, the offenses of

kidnapping and aggravated robbery are allied offenses.

       {¶25} We note in our earlier opinion, we were concerned only with whether there

was a “reasonable probability” the offenses were allied, such as to require reversal for a

new sentencing hearing under the standard of review for plain error. We found such

reasonable probability based on the facts set forth in the transcript.
Muskingum County, Case No. CT2018-0055                                                     11


       {¶26} Although no additional facts were set forth in the resentencing hearing, we

now apply de novo the standard set forth in Logan, supra, rather than looking only to

whether there is a reasonable probability the offenses merge. As set forth above, in the

syllabus of State v. Logan, the Ohio Supreme Court held, “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.” While we find tying the victim to

the chair, moving him to the bedroom in the chair, and tying his hands together did not

subject him to a substantial risk of harm separate and apart from the underlying crime,

we now conclude the restraint of the 87-year-old victim by covering his mouth with

packaging tape did subject him to a substantial risk of harm separate and apart from the

aggravated robbery. Given the age of the victim, covering his mouth risked harm by

choking or suffocation, and together with the tying of his hands and feet and threats of

death by first a knife and later a rifle did create a substantial risk of harm separate from

the aggravated robbery.

       {¶27} Further, while the record reflects the victim was able to untie his hands and

feet and drive to his son’s house after Appellant left the victim’s house, the victim was so

nervous and shaken he could not pull the tape off his mouth, so he sat outside the house

and honked his car horn until his son came out. Thus the restraint caused by gagging

the victim was prolonged.
Muskingum County, Case No. CT2018-0055                                      12


      {¶28} The assignment of error is overruled. The judgment of the Muskingum

County Common Pleas Court is affirmed.



By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur
