[Cite as State v. Small , 2011-Ohio-4086.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 10CAA110088
DEJUAN L. SMALL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 10CRI040203


JUDGMENT:                                      Affirmed in part; reversed in part; and
                                               remanded


DATE OF JUDGMENT ENTRY:                        August 16, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         WILLIAM T. CRAMER
Delaware County Prosecuting Attorney           470 Olde Worthington Road, Suite 200
                                               Westerville, Ohio 43082
DOUGLAS DUMOLT
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 10CAA110088                                                 2

Hoffman, P.J.


        {¶1}   Defendant-appellant DeJuan Small appeals his conviction and sentence

entered by Delaware County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                          STATEMENT OF THE FACTS AND CASE

        {¶2}   In November of 2008, Kamal Shehata was involved in a relationship with

Jessica Beasley. At the time, Shehata was married with children. When Shehata’s wife

learned of the relationship, she and the children moved out of the marital home.

Beasley did not know Shehata was married during the relationship, and was upset with

him for the deception.

        {¶3}   On November 24, 2008, Shehata contacted Beasley, whom he knew as

“Juju,” asking her if she wanted to “hang out” at his home explaining his wife had moved

out. Around 9:00 p.m. that evening, Shehata picked up Beasley to take her back to his

house. During the drive, Beasley was texting and talking on the phone a lot. Beasley

then asked Shehata to stop at a CVS store for her to use the restroom. Shehata

explained they were close to his house if she wanted to wait, but Beasley insisted they

stop at the CVS store. Shehata observed Beasley using the telephone while inside the

CVS store.

        {¶4}   At the Shehata residence, Shehata cooked dinner and he and Beasley

smoked marijuana. After dinner, they went upstairs to his bedroom. A short time later,

Shehata heard a loud explosion downstairs, near the front door.       He and Beasley

stepped to the bedroom door and saw four men running into the bedroom. All four men

had masks on their faces. The men asked about guns and money. The men then
Delaware County, Case No. 10CAA110088                                                   3


proceeded to take Shehata and Beasley to the bathroom and tie them up. Shehata’s

hands and feet were bound with zip ties, and his hands were tied to the shower door.

During the incident, one of the men said to Shehata, “You fuck with my family.”

      {¶5}   The men stole a gun, televisions, computers, cameras and approximately

$12,000 in cash from Shehata during the incident. They also took his cell phone and

house phone.

      {¶6}   Shehata telephoned the police, but Beasley told him she did not want to

be involved with the police because there was a warrant for her arrest. Shehata called

a cab for her. When interviewed by the police, Beasley initially gave them a false name.

A detective later examined Beasley’s cell phone which contained messages giving

someone directions to Shehata’s house. When confronted with the messages, Beasley

confessed she was involved with the robbery.

      {¶7}   A subpoena of Beasley’s cell phone records led detectives to Appellant.

In exchange for her testimony against Appellant, Beasley entered a plea of guilty to a

lesser included offense of kidnapping, and she was sentenced to four years in prison.

      {¶8}   When questioned by the investigating officers, Appellant claimed to have

lost his cell phone, which was actually owned by his stepfather, but admitted to

communicating with Beasley on the night in question.

      {¶9}   At trial herein, Beasley testified she was angry with Shehata after learning

of his marriage during their relationship. She testified Appellant’s number was stored in

her phone as “nunu”, and on the night in question she texted him back and forth to

make sure he was following her to Shehata’s residence in order to facilitate a robbery.
Delaware County, Case No. 10CAA110088                                                   4


At one point, Appellant lost them, and she had Shehata stop at the CVS store in order

to call Appellant.

       {¶10} Appellant was indicted on two counts of aggravated burglary, involving

threats of physical harm and a deadly weapon, in violation of R.C. 2911.11(A)(1)(2); one

count of aggravated robbery with a deadly weapon, in violation of R.C. 2911.01(A)(1);

three counts of kidnapping to facilitate a felony and terrorize a victim, and creating a

substantial risk of serious physical harm, in violation of R.C. 2905.01(A)(2)(3) and

(B)(2); and a firearm specification. Following a jury trial, Appellant was found guilty on

all charges.

       {¶11} At sentencing, the trial court merged the sentences on the aggravated

burglary and aggravated robbery counts. The court then sentenced Appellant to nine

years on the first count of aggravated burglary and a concurrent term of six years on the

first count of kidnapping. The court also imposed a consecutive three year term for the

firearm specification, a five year term of post-release control and ordered Appellant pay

$13,000 in restitution.

       {¶12} Appellant now appeals, assigning as error:

       {¶13} “I. DEFENDANT’S STATE AND FEDERAL DUE PROCESS RIGHTS TO

THE PRESUMPTION OF INNOCENCE WERE VIOLATED WHEN ONE OF THE

STATE’S WITNESSES TESTIFIED THAT DEFENDANT HAD TO BE TRANSPORTED

TO JAIL IN A POLICE CRUISER DURING TRIAL.

       {¶14} “II. DEFENDANT’S STATE AND FEDERAL RIGHTS TO DUE PROCESS

WERE VIOLATED WHEN THE TRIAL COURT DISAPPROVED TRANSITIONAL

CONTROL UNDER R.C. 2967.26 AT SENTENCING.
Delaware County, Case No. 10CAA110088                                                  5


       {¶15} “III. DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO DUE PROCESS AND PROTECTION FROM DOUBLE JEOPARDY WERE

VIOLATED WHEN THE TRIAL COURT IMPOSED SENTENCE ON THE ALLIED

OFFENSES OF AGGRAVATED BURGLARY AND KIDNAPPING IN VIOLATION OF

R.C. 2941.25.”

                                                    I

       {¶16} In the first assignment of error, Appellant argues his due process rights

were violated when Shehata testified to Appellant being transported to trial in a police

cruiser.

       {¶17} During the trial of this matter, Shehata failed to comply with a subpoena to

testify; therefore, he was kept in jail overnight to ensure his presence to testify the

following day. During his testimony, Shehata stated:

       {¶18} “Q. Do you see an individual seated at the defense table to my left?

       {¶19} “A. I can’t tell, sir. I don’t know.

       {¶20} “Q. Right.     You can’t tell if that was the person who was there that

evening; right?

       {¶21} “A. Yes.

       {¶22} “Q. Has that man said anything to you about this case since this has

started?

       {¶23} “A. Yesterday - -

       {¶24} “Mr. Boger: Objection, Your Honor.

       {¶25} “The Witness: Yesterday - -

       {¶26} “The Court: I’ll overrule.
Delaware County, Case No. 10CAA110088                                                    6


       {¶27} “By Mr. Dumolt:

       {¶28} “Q. Okay. You can go ahead and answer, if he said anything to you about

--

       {¶29} “A. Yesterday, I was leaving the courthouse with my handcuffs, you know,

he was leaving at the same time. He was threatening me downstairs, ‘Don’t talk’. He

was like, ‘Don’t talk.’ The cops was with me. And he was trying to tell me, don’t talk,

with the face, you know, the threatening face.

       {¶30} “Q. But to the best of your knowledge before yesterday, you had never

seen that man?

       {¶31} “A. No, sir.”

       {¶32} Tr. at 201-202.

       {¶33} On cross-examination, Shehata testified:

       {¶34} “A. He was like ‘Don’t talk’ and he was looking at me like this. I told the

cops - -

       {¶35} “Q. So you were in the car?

       {¶36} “A. Yes.

       {¶37} “Q. You couldn’t hear words?

       {¶38} “A. Yeah, but you can read lips.

       {¶39} “Q. You could see his mouth moving?

       {¶40} “A. Yes, and you could see his face, his eyes, looking at you, trying to tell

you, ‘Don’t talk’.

       {¶41} “Q. How far away were you, a cruiser?

       {¶42} “A. The cruiser, he was in that cruiser and I was in the cruiser next to him.”
Delaware County, Case No. 10CAA110088                                                    7


      {¶43} Tr. at 202-203.

      {¶44} Appellant’s counsel moved for a mistrial as a result of the statement, and

the trial court denied the same. The following exchange occurred on the record,

      {¶45} “The Court: Well, first of all, your client is sitting there; he’s got a deputy

sitting behind him and the other deputy is in the courtroom. I mean anybody would

have to be stupid not to know that’s he’s not under custody. He is in civilian clothes.

Okay. It was your client who, apparently, made the statement. So anything that comes

out, he’s brought upon himself. So, I’ll strike the portion of his answer regarding the

cruiser and deny your motion for mistrial.

      {¶46} (End of side-bar.)

      {¶47} “The Court: All right, folks, please disregard any part of the answer that

mentioned, cruiser. Go ahead, Mr. Boger.”

      {¶48} Tr. at 204.

      {¶49} In State v. Freeman, Stark App. No. 2006CA00388, 2007-Ohio-6270, this

Court held,

      {¶50} “Appellant likens the witness's remark about Appellant's ‘jail shoes’ to

cases which hold that, ‘[a] criminal defendant is generally entitled to appear in court

without shackles, as the presumption of innocence may be undermined when the

defendant is presented in restraints.’ State v. Garrett, 5th Dist. No. 03-CA-49, 2004-

Ohio-2231, at ¶ 37 citing Zygadlo v. Wainwright (C.A.11, 1983), 720 F.2d 1221,

certiorari denied (1984), 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468; Gilmore v.

Armontrout (C .A.8, 1989), 861 F.2d 1061, certiorari denied (1989), 490 U.S. 1114, 109
Delaware County, Case No. 10CAA110088                                                  8

S.Ct. 3176, 104 L.Ed.2d 1037; State v. Carter (1977), 53 Ohio App.2d 125, 7 O.O.3d

90, 372 N.E.2d 622.

       {¶51} “The same has been held in regards to the defendant's appearance at trial

in jail clothing. In Estelle v. Williams, the United States Supreme Court stated that a

juror's judgment might be affected by a defendant's appearance in prison clothing.

(1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. ‘Being compelled to wear prison

or jail clothing, like being restrained, erodes the presumption of innocence.’ State v.

Evans, 4th Dist. No. 05CA3002, 2004-Ohio-2564, at ¶ 41 citing State v. Hecker (July

15, 1994), 4th Dist. No. 93CA10; see also State v. Watters, 8th Dist. No. 82451, 2004-

Ohio-2405. In order to determine whether a conviction must be overturned because an

accused wore jail clothing at trial, the relevant inquiry is whether the accused's

appearance in jail clothing was compelled. State v. Garrett, 5th Dist. No. 03-CA-49,

2004-Ohio-2231, at ¶ 12 citing State v. Dorsey (Apr. 23, 1998), 8th Dist. No. 72177.

       {¶52} “In his Assignment of Error, Appellant does not argue that he was

compelled to appear at trial wearing shoes issued by the prison. Upon a review of the

record, there is no evidence that Appellant was compelled to stand trial before the jury

in prison-issue shoes. Appellant argues that he was prejudiced by the witness's

statement on direct examination that Appellant was wearing ‘jail shoes.’

       {¶53} “Assuming arguendo the wearing of prison-issue shoes rose to the level of

an Estelle violation, we find the error to be harmless and must be disregarded under

Crim.R. 52(A), which reads:

       {¶54} “ ‘Harmless error. Any error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded.’
Delaware County, Case No. 10CAA110088                                                     9

       {¶55} “The claimed error, under Estelle, supra, is of federal constitutional

magnitude. State v. Hecker, supra. Thus, we must apply the federal test of harmless

error, which is stated in Chapman v. California (1967), 386 U.S. 18. Chapman requires

that ‘ * * * before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt. * * * ‘Chapman,

supra, at 24. Therefore, applying the Chapman test, we must examine the entire record

to determine whether it appears reasonably possible that the error might have materially

influenced the jury in arriving at its verdict.

       {¶56} “Applying the above standard, we hold that the fact that Appellant

appeared before the jury in prison-issue shoes did not materially influence the jury's

verdict. We find the verdict would have been returned irrespective of Appellant's

physical appearance at trial. Thus, any error was harmless beyond a reasonable doubt.

       {¶57} “Finally, we note the trial court instructed the jury that the attire described

by the witness did not indicate whether Appellant was currently incarcerated and that

the jury must presume Appellant innocent until his guilt is proved beyond a reasonable

doubt. It must be presumed that the jury followed this instruction. Pang v. Minch (1990),

53 Ohio St.3d 186, paragraph four of the syllabus.”

       {¶58} It is well settled when jurors see a defendant in custody, there is no need

for a new trial when the encounter was “brief, inadvertent, and outside the courtroom.”

State v. Jaloweic (2001), 91 Ohio St.3d 220; State v. Linkous, Licking App. No. 08CA51,

2009-Ohio-1896.

       {¶59} While we do not find the testimony relative to Appellant’s transportation in

a cruiser equivalent to appearing at trial in prison attire, we will nonetheless address
Delaware County, Case No. 10CAA110088                                                    10

Appellant’s argument assuming, arguendo, the testimony rose to the level of an Estelle

violation. We must presume the jury followed the trial court’s instruction, and upon

review of the record we find any error would be harmless beyond a reasonable doubt.

There is substantial evidence upon which the jury based its verdict, including the

testimony of Jessica Beasley and the cell phone records linking Appellant to the

incident. Shehata’s brief and inadvertent reference to Appellant’s transportation in a

cruiser did not prejudice Appellant beyond a reasonable doubt.

       {¶60} The first assignment of error is overruled.

                                                II.

       {¶61} In the second assignment of error Appellant argues the trial court erred in

including as part of Appellant's sentencing a provision not to consider transitional

control.

       {¶62} R.C. 2967.26 allows for the creation of a transitional control program for

those nearing the end of their prison sentence. The statute reads, in pertinent part,

       {¶63} “(2) At least three weeks prior to transferring to transitional control under

this section a prisoner who is serving a term of imprisonment or prison term for an

offense committed on or after July 1, 1996, the adult parole authority shall give notice of

the pendency of the transfer to transitional control to the court of common pleas of the

county in which the indictment against the prisoner was found and of the fact that the

court may disapprove the transfer of the prisoner to transitional control and shall include

a report prepared by the head of the state correctional institution in which the prisoner is

confined. The head of the state correctional institution in which the prisoner is confined,

upon the request of the adult parole authority, shall provide to the authority for inclusion
Delaware County, Case No. 10CAA110088                                                       11


in the notice sent to the court under this division a report on the prisoner's conduct in the

institution and in any institution from which the prisoner may have been transferred. The

report shall cover the prisoner's participation in school, vocational training, work,

treatment, and other rehabilitative activities and any disciplinary action taken against the

prisoner. If the court disapproves of the transfer of the prisoner to transitional control,

the court shall notify the authority of the disapproval within thirty days after receipt of the

notice. If the court timely disapproves the transfer of the prisoner to transitional control,

the authority shall not proceed with the transfer. If the court does not timely disapprove

the transfer of the prisoner to transitional control, the authority may transfer the prisoner

to transitional control.”

       {¶64} This Court recently addressed the issue raised herein in State v. Spears,

Licking App. No. 10 CA 95, 2011-Ohio-1538, holding:

       {¶65} “While the statute does not specifically prohibit the court from denying the

transitional control prior to notice, we find to do so clearly thwarts the design and

purpose of the statute. The statute is designed to promote prisoner rehabilitation effort

and good behavior while incarcerated. To prematurely deny the possibility of transitional

control runs contra to those purposes. While the trial court retains discretion to

disapprove the transitional control, we find to do so in the sentencing entry prior to

notice from the adult parole authority is premature.”

       {¶66} Based upon the rationale set forth in Spears, supra, Appellant's second

assignment of error is sustained.
Delaware County, Case No. 10CAA110088                                                 12


                                              III.

       {¶67} In the third assignment of error, Appellant argues the trial court erred in

imposing sentence on the allied offenses of aggravated burglary and kidnapping, in

violation of R.C. 2941.25.

       {¶68} R.C. 2941.25 states as follows: “(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.

       {¶69} “(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.”

       {¶70} Recently, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d

1405, 2010–Ohio–6314, modified the test for determining whether offenses are allied

offenses of similar import. In Johnson, the Ohio Supreme Court directed us to look at

the elements of the offenses in question and determine whether or not it is possible to

commit one offense and commit the other with the same conduct. If the answer to such

question is in the affirmative, the court must then determine whether or not the offenses

were committed by the same conduct. If the answer to the above two questions is yes,

then the offenses are allied offenses of similar import and will be merged. If, however,

the court determines that commission of one offense will never result in the commission
Delaware County, Case No. 10CAA110088                                                    13


of the other, or if there is a separate animus for each offense, then the offenses will not

merge according to Johnson, supra.

         {¶71} Appellant was convicted of aggravated burglary, in violation of R.C.

2911.11(A)(1)(2), which reads:

         {¶72} “(A) No person, by force, stealth, or deception, shall trespass in an

occupied structure or in a separately secured or separately occupied portion of an

occupied structure, when another person other than an accomplice of the offender is

present, with purpose to commit in the structure or in the separately secured or

separately occupied portion of the structure any criminal offense, if any of the following

apply:

         {¶73} “(1) The offender inflicts, or attempts or threatens to inflict physical harm

on another;

         {¶74} “(2) The offender has a deadly weapon or dangerous ordnance on or

about the offender's person or under the offender's control.”

         {¶75} Appellant was further convicted of kidnapping, in violation of R.C. 2905.01,

which reads:

         {¶76} “(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:

         {¶77} “(1) To hold for ransom, or as a shield or hostage;

         {¶78} “(2) To facilitate the commission of any felony or flight thereafter;
Delaware County, Case No. 10CAA110088                                                 14


       {¶79} “(3) To terrorize, or to inflict serious physical harm on the victim or

another;

       {¶80} “(4) To engage in sexual activity, as defined in section 2907.01 of the

Revised Code, with the victim against the victim's will;

       {¶81} “(5) To hinder, impede, or obstruct a function of government, or to force

any action or concession on the part of governmental authority;

       {¶82} “(6) To hold in a condition of involuntary servitude.

       {¶83} “(B) 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 knowingly do

any of the following, under circumstances that create a substantial risk of serious

physical harm to the victim or, in the case of a minor victim, under circumstances that

either create a substantial risk of serious physical harm to the victim or cause physical

harm to the victim:

       {¶84} “(1) Remove another from the place where the other person is found;

       {¶85} “(2) Restrain another of the other person's liberty.”

       {¶86} In State v. Sidibeh, 192 Ohio App.3d 256, 2011-Ohio-712, the Tenth

District Court of Appeals recently addressed the issue of whether kidnapping was an

allied offense of aggravated robbery under Johnson, where the kidnapping was

incidental to the aggravated robbery, holding:

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

1061, ¶ 44, the Supreme Court of Ohio recently overruled State v. Rance (1999), 85

Ohio St.3d 632, 710 N.E.2d 699, which held that R.C. 2941.25 called for an abstract

analysis of multiple offenses. The court in Johnson concluded that the statute ‘instructs
Delaware County, Case No. 10CAA110088                                                   15


courts to examine a defendant's conduct—an inherently subjective determination.’ Id. at

¶ 52. Pursuant to Johnson, ‘[i]f the multiple offenses can be committed by the same

conduct, then the court must determine whether the offenses were committed by the

same conduct, i.e., ‘a single act, committed with a single state of mind.’ ’ Id. at ¶ 49,

quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50

(Lanzinger, J., concurring in judgment only). ‘If the answer to both questions is yes, then

the offenses are allied offenses of similar import and will be merged.’ Johnson at ¶ 50.

‘Conversely, if the court determines that the commission of one offense will never result

in the commission of the other, or if the offenses are committed separately, or if the

defendant has separate animus for each offense, then, according to R.C. 2941.25(B),

the offenses will not merge.’ (Emphasis sic.) Id. at ¶ 51.

       {¶88} “Appellee argues that under a subjective analysis, the kidnapping and

aggravated-robbery offenses pertaining to Raheem and Paris do not merge. It relies on

State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, syllabus, a

case predating Rance and applying a subjective review to the merger issue. In Logan,

the court held that when a kidnapping is merely incidental to another underlying crime,

there exists no separate animus sufficient to sustain separate convictions. Id. On the

other hand, when the kidnapping ‘subjects the victim to a substantial increase in risk of

harm separate and apart from’ the other underlying crime, a separate animus exists for

each offense sufficient to support separate convictions. Id. Likewise, when, in a

kidnapping, ‘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
Delaware County, Case No. 10CAA110088                                                16


exists a separate animus as to each offense sufficient to support separate convictions.’

Id.

      {¶89} “Relying on Logan, appellee argues that merger does not apply to the

kidnapping and aggravated-robbery offenses pertaining to Raheem and Paris because

appellant forced them into prolonged restraint, moved them to a common area of the

home, and threatened to harm them if they did not cooperate. The restraint, however,

lasted no longer than the time it took for the commission of the aggravated robbery. Nor

was appellant's movement of the victims to a common area of the home ‘substantial so

as to demonstrate significance independent of’ the aggravated robbery. See Logan at

syllabus. See also State v. Williams, 10th Dist. No. 02AP–35, 2002-Ohio-4503, 2002

WL 2005815, ¶ 76–77 (concluding that a defendant's kidnapping offense was incidental

to, and merged with, an underlying offense when the defendant took the victim from the

bathroom to the living room before committing the underlying offense). The threat

appellant made to Raheem and Paris also occurred to facilitate the aggravated robbery

and did not escalate in a manner that substantially increased the risk of harm to those

victims separate and apart from the aggravated robbery.

      {¶90} “Therefore, analyzing appellant's conduct under Logan establishes that

the kidnapping of Raheem and Paris was incidental to the aggravated robbery. In fact,

the court in Johnson has indicated that ‘the commission of an aggravated robbery * * *

would also constitute a kidnapping' when, as here, ‘ ‘a weapon that has been shown * *

* during the commission of a theft offense * * * forcibly restrain[ed] the liberty of

another.’ ’ Id. at ¶ 52, quoting State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905

N.E.2d 154, ¶ 21.
Delaware County, Case No. 10CAA110088                                                  17


          {¶91} “In the final analysis, the kidnapping against Raheem and Paris was

merely incidental to, and stemmed from the same conduct as, the aggravated robbery.

Consequently, the trial court committed plain error by failing to merge (1) the kidnapping

offense pertaining to Paris with the aggravated robbery offense pertaining to that victim

and (2) the kidnapping offense pertaining to Raheem with the aggravated robbery

offense pertaining to that victim. Thus, we sustain appellant's seventh assignment of

error.”

          {¶92} In State v. Logan (1979), 60 Ohio St.2d 126, the Supreme Court set forth

the following factors to consider when considering whether kidnapping is an allied

offense of another charge,

          {¶93} “The primary issue, however, is whether the restraint or movement of the

victim is merely incidental to a separate underlying crime or, instead, whether it has a

significance independent of the other offense. In the instant case, the restraint and

movement of the victim had no significance apart from facilitating the rape. The

detention was brief, the movement was slight, and the victim was released immediately

following the commission of the rape. In such circumstances, we cannot say that

appellant had a separate animus to commit kidnapping.

          {¶94} “We adopt the standard which would require an answer to the further

question of whether the victim, by such limited asportation or restraint, was subjected to

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

crime. If such increased risk of harm is found, then the separate offense of kidnapping

could well be found. For example, prolonged restraint in a bank vault to facilitate
Delaware County, Case No. 10CAA110088                                                    18


commission of a robbery could constitute kidnapping. In that case, the victim would be

placed in substantial danger.”

       {¶95} Following the rationale of Sidibeh and Logan set forth above; we find

Appellant’s commission of the kidnapping was merely incidental to the aggravated

burglary. Appellant took Shehata and Beasley to the other room and tied them up in

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

commission of the aggravated burglary and, like Sidibeh and Logan, the restraint and

movement had no significance apart from facilitating the commission of the aggravated

burglary. We find the restraint did not subject the victims to a substantial increase in the

risk of harm separate from that involved in the underlying crime. Accordingly, we find it

was plain error not to find the offenses to be allied offenses of similar import.

       {¶96} The judgment of the Delaware County Court of Common Pleas is affirmed

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

resentence Appellant in accordance with the law and this Opinion.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER


                                              s/ Patricia A. Delaney _________________
                                              HON. PATRICIA A. DELANEY
Delaware County, Case No. 10CAA110088                                              19


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
DEJUAN L. SMALL                            :
                                           :
       Defendant-Appellant                 :         Case No. 10CAA110088


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

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

case is remanded for further proceedings in accordance with the law and our Opinion.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
