[Cite as State v. Schleehauf, 2013-Ohio-3204.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY



STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2012-11-079

                                                 :             OPINION
    - vs -                                                      7/22/2013
                                                 :

WILLIAM TODD SCHLEEHAUF,                         :

        Defendant-Appellant.                     :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2012 CR 00588


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

R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third
Street, Batavia, Ohio 45103, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, William Todd Schleehauf, appeals his sentence in the

Clermont County Court of Common Pleas for kidnapping, attempted rape, and aggravated

burglary.     Under the facts and circumstances of this case, aggravated burglary and

kidnapping are not allied offenses of similar import under R.C. 2941.25, and therefore the

trial court properly declined to merge them for sentencing.

        {¶ 2} On May 1, 2012, appellant confronted the victim, his 14-year-old biological

daughter, in the hallway of the apartment complex in which she resided with her mother.
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Appellant forced the victim back inside her residence and into the kitchen, where he grabbed

a knife, held it to the victim's throat, and threatened to take her life. He then forced the victim

to the master bedroom, pulled off her shoes, pants, and underwear, undressed himself, and

attempted to rape the victim at knifepoint. After the attempted rape, appellant ordered the

victim to take a shower, change her clothes, and return to the master bedroom. Hours later

he left the apartment.

       {¶ 3} On August 1, 2012, the grand jury returned an 11-count indictment charging

the appellant with burglary, aggravated burglary, attempted rape, rape, kidnapping, domestic

violence, tampering with the evidence, and escape. At his plea hearing, appellant pled guilty

to one count of kidnapping under R.C. 2905.01(A)(2) with a repeat violent offender

specification, one count of attempted rape under R.C. 2907.02(A)(2) and 2923.02, and one

count of aggravated burglary under R.C. 2911.11(A)(2). During the prosecution's statement

of facts, the trial court's efforts to clarify the kidnapping charge precipitated the following

exchange:

              THE COURT:             * * * what you're alleging is that he ordered
                                     her to take a shower and - -

              [THE STATE]:           After the rape - - after the attempted rape
                                     took place, yes, Your Honor.

              THE COURT:             Was restraining her during that period of
                                     time?

              [THE STATE]:           That - - that's accurate, Your Honor.

              THE COURT:             Mr. Schleehauf, do you have any
                                     disagreement with that statement, or is
                                     there anything that you wish to add?

              [DEFENDANT]:           No, Sir.

       {¶ 4} The trial court heard oral argument on the issue of merger of allied offenses on

September 21, 2012, whereat appellant argued that all three counts should be merged as

allied offenses because his conduct constituted one continuous act with the single animus of
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committing the rape. On October 9, the trial court denied merger of the three counts and

sentenced appellant to 11 years for kidnapping, ten years for a repeat violent offender

specification on the kidnapping offense, eight years for attempted rape, and 11 years for

aggravated burglary. The sentences were imposed consecutively for an aggregate total of

40 years in prison. Appellant appealed, raising as his sole assignment of error the following:

       {¶ 5} THE TRIAL COURT ERRED IN FAILING TO MERGE THE AGGRAVATED

BURGLARY WITH KIDNAPPING FOR PURPOSES OF SENTENCING.

       {¶ 6} Appellant argues the trial court should have merged the aggravated burglary

and kidnapping offenses for sentencing. He contends that the two offenses were committed

by a single act with a single state of mind. We disagree.

       {¶ 7} "An appellate court applies a de novo standard of review in reviewing a trial

court's R.C. 2941.25 merger determination." State v. Davis, 12th Dist. No. CA2012-09-194,

2013-Ohio-2637, ¶ 7, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28.

Since appellant argued merger below, we review the trial court's merger determination de

novo. Id., citing State v. Willis, 12th Dist. No. CA2012-08-155, 2013-Ohio-2391, ¶ 34.

       {¶ 8} R.C. 2941.25, the statute governing allied offenses of similar import, provides:

              (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.

In other words, the statute "prohibits the imposition of multiple punishments for the same

criminal conduct." State v. Ozevin, 12th Dist. No. CA2012-06-044, 2013-Ohio-1386, ¶ 9,

citing State v. Brown, 12th Dist. No. CA2009-05-142, 2010-Ohio-324, ¶ 7.

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

Court outlined a two-part test for identifying allied offenses of similar import under R.C.

2941.25. Ozevin at ¶ 10, citing State v. Craycraft, 193 Ohio App.3d 594, 2011-Ohio-413, ¶

11 (12th Dist.). The first part requires the court to ask whether it is possible to commit the

offenses at issue with the same conduct. Id., citing Johnson at ¶ 48; State v. McCullough,

12th Dist. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992, ¶ 14. The court should

not ask whether committing one offense would always result in the commission of the other,

but simply whether it could result in the commission of the other. Id., citing Johnson at ¶ 48;

Craycraft at ¶ 11.

       {¶ 10} If the first part is answered in the affirmative, the court must proceed to the

second part of the test and ask whether the offenses were actually committed by the same

conduct; "i.e., a single act, committed with a single state of mind." State v. Smith, 12th Dist.

No. CA2012-01-004, 2012-Ohio-4523, ¶ 13, citing Johnson at ¶ 49. If both parts of the test

are answered in the affirmative, the offenses must be merged as allied offenses of similar

import under R.C. 2941.25(A). Id., citing Johnson at ¶ 50. "However, if the commission of

one offense [would] never result in the commission of the other, or if the offenses [were]

committed separately, or if the defendant [had] a separate animus for each offense, then

according to R.C. 2941.25(B) the offenses will not merge." Id., citing Johnson at ¶ 51; State

v. Ayers, 12th Dist. Nos. CA2010-12-119 and CA2010-12-120, 2011-Ohio-4719.

       {¶ 11} Appellant argues, and the state does not deny, that aggravated burglary and

kidnapping could be committed by the same act, and therefore that the first part of the

Johnson test is satisfied in this case. We agree. See Ozevin, 2013-Ohio-1386 at ¶ 12. Yet

the facts show that in this particular case the aggravated burglary and kidnapping were

committed by separate acts and with a separate animus. Therefore the second part of the

Johnson test is not satisfied.

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       {¶ 12} Aggravated burglary is trespassing by force, stealth, or deception in an

occupied structure with the purpose to commit within the structure a criminal offense when

the offender has a deadly weapon on or about his person or under his control. R.C.

2911.11(A)(2). "The act of aggravated burglary * * * is not complete until the offender inflicts,

attempts, or threatens physical harm to another." Ozevin, 2013-Ohio-1386 at ¶ 13, citing

State v. Seymore, 12th Dist. Nos. CA2011-07-131 and CA2011-07-143, 2012-Ohio-3125, ¶

24.

       {¶ 13} Kidnapping is the knowing restraint of the liberty of another person by force,

threat, or deception to facilitate the commission of a felony or flight thereafter. R.C.

2905.01(A)(2). The Ohio Supreme Court has established guidelines for distinguishing

whether a kidnapping offense is committed with a separate animus than another offense of

similar kind:

                (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; (Emphasis added.)

State v. Thornton, 12th Dist. No. CA2008-10-092, 2009-Ohio-3685, ¶ 39, quoting State v.

Logan, 60 Ohio St.2d 126, syllabus (1979). "These guidelines appear to remain valid in the

wake of Johnson." Ozevin, 2013-Ohio-1386, ¶ 13, citing State v. McCullough, 2011-Ohio-

992, ¶ 20.

       {¶ 14} Appellant argues the kidnapping was accomplished through an aggravated

burglary, and that the two offenses were committed by a single act with a single state of

mind. In support, he points to an Eighth District case for the proposition that because the

deadly force used to accomplish the kidnapping was a deadly weapon, appellant incidentally

committed an aggravated burglary. In that case, the offender was convicted as a conspirator
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on charges of kidnapping, aggravated robbery, aggravated burglary, and felonious assault for

a brief daytime robbery during which an elderly woman was pushed down her basement

stairs, threatened with a tire iron, and robbed. State v. Lacavera, 8th Dist. No. 96242, 2012-

Ohio-800. The Eighth District found that "breaking into the house and inflicting physical harm

on the victim * * * occurred as part of the same transaction as the other crimes." Id. at ¶ 46.

As such, and because "[t]he victim's 'restraint of movement' was incidental to the robbery of

her property and the serious physical harm," the Eighth District held that the crimes were

committed by the same conduct and with the same animus. Id. at ¶ 42. We do not find the

facts in Lacavera to be analogous to the facts of the present case.

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

separate acts. Appellant forced the victim from the common hallway of her apartment

complex into the kitchen of her residence, and then completed the aggravated burglary by

grabbing a knife and threatening the victim's life. See State v. Haddix, 12th Dist. No.

CA2011-07-075, 2012-Ohio-2687, ¶ 59, 60 (an aggravated burglary was completed by a

separate act when the victim was injured by appellant in the garage, and then appellant

dragged the victim inside the house and robbed him). The kidnapping, on the other hand,

was committed after the completion of the aggravated burglary and the attempted rape

offenses, when appellant further restrained the victim by ordering her to take a shower,

change her clothes, and return to the master bedroom, and when he prolonged that restraint

by not leaving until hours later. See State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-

4250, ¶ 87 (kidnapping and felonious assault offenses were committed by separate conduct

when appellant trapped the victim in a van before punching and stabbing her).

       {¶ 16} Furthermore, the aggravated burglary and kidnapping offenses were committed

with a separate animus. "The Logan court defined 'animus,' for purposes of R.C. 2941.25(B),

as meaning 'purpose, or, more properly, immediate motive.'" Thornton, 2009-Ohio-3685 at ¶

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41, quoting Logan, 60 Ohio St.2d at 131.           Following the attempted rape, appellant's

immediate motive for prolonging his restraint of the victim's liberty could not have been the

same as his motive for the commission of the aggravated burglary, which was completed

when he threatened the victim with the knife. Instead, the extent to which appellant

prolonged his restraint of the victim's liberty and the activities he required of the victim during

this restraint (i.e., showering, changing her clothes) suggest the separate animus of

facilitating flight following appellant's other felonies or concealing his criminal wrongdoing.

See State v. Ramirez, 12th Dist. No. CA2010-11-305, 2011-Ohio-6531, ¶ 57, 60 (the

prolonged restraint was evidence of a separate animus for kidnapping where "[t]he overall

ordeal suffered by the victim at the hands of appellant lasted one hour and 20 minutes");

State v. Davis, 10th Dist. No. 09AP-869, 2011-Ohio-1023, ¶ 2, 23 (a separate animus was

demonstrated for kidnapping and aggravated burglary offenses where appellant stormed the

victims' home, forced the victims into a van, then held them at gunpoint and drove them

around for several hours).

       {¶ 17} Under the facts and circumstances of this case, aggravated burglary and

kidnapping are not allied offenses of similar import because they do not satisfy the second

part of the Johnson test.      The offenses of aggravated burglary and kidnapping were

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

correct in declining to merge the offenses for sentencing. Appellant's sole assignment of

error is overruled.

       {¶ 18} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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