[Cite as State v. Hicks, 2011-Ohio-2780.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95169

STATE OF OHIO PLAINTIFF-APPELLEE vs. ANDRE HICKS DEFENDANT-APPELLANT JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-533926 BEFORE: S. Gallagher, J., Celebrezze, P.J., and Jones, J. RELEASED AND JOURNALIZED: June 9, 2011 ATTORNEYS FOR APPELLANT Robert Tobik Chief Public Defender BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Robert Botnick Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.: {¶ 1} Appellant Andre Hicks (“Hicks”) appeals his convictions in Cuyahoga County Common Pleas Court Case No. CR-533926 of one count of kidnapping and one count of felonious assault with a deadly weapon. The jury acquitted Hicks of several other charges. The trial court sentenced Hicks to four years on each count, to be served concurrently. For the following reasons, we reverse and vacate the trial court’s sentence and remand for further proceedings consistent with this opinion. {¶ 2} Hicks and an individual known as “D” approached Demetrius Williams (“Williams”) in the second-floor room of a mutual friend’s house. Hicks and “D” accused Williams of stealing drugs. Moments later, a masked man, later identified as Hicks’s co-defendant Brandon Blackman (“Blackman”), entered the room brandishing a chrome revolver and began pistol-whipping Williams. According to Williams, Hicks and “D” attacked another individual in the room who was able to escape. After the other’s escape, Hicks and “D” turned their attention toward Williams. During the attack, Williams attempted to escape the room but was prevented by Hicks and “D.” Williams eventually escaped, fled the house, and ran home. {¶ 3} After the joint trial of Hicks and Blackman, the jury returned a guilty verdict against Hicks as to two of seven counts: kidnapping and felonious assault with a deadly weapon. Blackman was found guilty of felonious assault, kidnapping, and a firearm specification. The jury acquitted Hicks of aggravated robbery and other felonious assault charges, and all firearm specifications. The trial court sentenced Hicks and the co-defendant Blackman simultaneously and sentenced Hicks to four years for each guilty count and imposed the terms concurrently. When announcing Blackman’s sentence to the firearm specification and kidnapping and felonious assault charges, the court stated the latter two charges were not allied offenses. The trial court further found the kidnapping was committed with a separate animus to warrant a separate sentence. No mention of allied offenses was made during the immediately ensuing announcement of Hicks’s sentence. The trial court did not impose court costs at sentencing, but included court costs in the sentencing entry and acknowledged that Hicks was indigent. {¶ 4} Hicks raises two assignments of error. His first assignment of error is as follows: “The trial court erred at sentencing by failing to merge the kidnapping count with the felonious assault count and by imposing concurrent sentences on both.” Hicks’s first assignment of error is sustained. {¶ 5} The record reflects that Hicks never raised the issue of merger in the trial court and therefore has waived all but plain error on appeal. State v. Russell, Cuyahoga App. No. 83699, 2004-Ohio-5031, citing State v. Smith, 80 Ohio St.3d 89, 118, 1997-Ohio-355, 684 N.E.2d 668. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). “Plain error exists only if but for the error, the outcome of the trial clearly would have been otherwise, and is applied under exceptional circumstances and only to prevent a manifest miscarriage of justice.” (Citation and quotations omitted.) State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61. The imposition of multiple sentences for allied offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. {¶ 6} The legislature enacted R.C. 2941.25 to uphold double jeopardy principles. R.C. 2941.25 provides 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. “(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.” {¶ 7} The Ohio Supreme Court’s latest incarnation of analysis in effectuating R.C. 2941.25 came in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Supreme Court overruled State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, and established, through a two-tiered test, that the conduct of the accused must be considered when determining whether offenses are allied offenses of similar import subject to merger. {¶ 8} The first inquiry focuses on whether it is possible to commit multiple offenses with the same conduct. Johnson, 128 Ohio St.3d 153, at ¶ 48. If the offenses “correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” (Emphasis added.) Id. It is not necessary that both crimes are always committed by the same conduct, only whether it is possible for the defendant’s conduct to result in the commission of both offenses. Id. {¶ 9} The first tier of this analysis is fairly straightforward. Prior to Johnson, courts determined whether offenses were allied based on an abstract inquiry into the statutory elements of the offenses. The plurality in Johnson abandoned this approach. Id. at ¶ 47. We note, however, Justice O’Connor maintained in her concurring opinion that Rance was overruled “inasmuch as it requires a comparison of the elements of the offenses solely in the abstract.” (Emphasis added.) Id. at ¶ 68. While abstract comparisons are no longer required, courts must still use the legal elements to provide a context for examining the offender’s conduct in relation to the offenses. In our view, the new Johnson test did not completely eliminate consideration of the legal elements; it simply made the offender’s conduct the lynchpin of the analysis. Thus, the reviewing court uses the elements of the offenses as guideposts to measure the defendant’s conduct as it relates to the offenses in determining whether multiple offenses could have been committed by the same conduct. {¶ 10} In abandoning the use of abstract comparisons, prior judicial determinations that offenses are allied may be helpful, but are no longer dispositive. Contra State v. McCullough, Fayette App. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992, ¶ 17 (relying on prior determinations that two offenses were allied to satisfy the first tier of the Johnson test). The same combinations of offenses may not always be allied for the purposes of the individual case. Post Johnson, courts must undertake a case-by-case inquiry as to whether the defendant’s conduct can constitute the commission of more than one charged offense — remedying the criticism that Rance was a rigid, one-size-fits-all approach. Johnson, 128 Ohio St.3d 153, at ¶ 82 (O’Donnell, J., concurring). If it is possible to commit both offenses with the same conduct, then the court must find that the offenses are allied offenses of similar import. This, however, does not end the analysis. {¶ 11} The second tier of the Johnson test requires the court to look at the “state of mind” of the offender to determine if the offender acted with a separate animus or purpose in committing two or more offenses. This is the more difficult analysis in the Johnson test, notably absent from which is any tool, method, or test for determining when someone acts with a separate purpose or animus or, for that matter, any framework to aid in this determination. For this purpose, we rely on the following guidelines to analyze whether kidnapping and an offense of similar import are committed with separate animus: “(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.” State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, syllabus. The focus in Logan is on the characteristics of the restraint. If the restraint or movement is incidental to the underlying offense, the focus turns to whether the restraint exposes the victim to an increased risk of harm separate from the underlying offense. {¶ 12} Succinctly stated, “[i]n Logan and subsequent cases, prolonged restraint, secretive confinement, and substantial movement apart from that involved in the other crime were factors necessary to establish a separate animus as to each offense sufficient to support separate convictions.” (Internal citations omitted.) State v. Lynch, 98 Ohio St.3d 514, 536, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 134. According to Logan and its progeny, the conduct of the offender is analytically tied to the offender’s state of mind. Logan, 60 Ohio St.2d 126. In other words, we look to the offender’s conduct to determine his state of mind. In Logan, the Ohio Supreme Court held that the offender’s conduct in forcing the victim into an alley, around a corner, and down a flight of stairs before raping her at knife point was committed without a separate animus. The court found that the movement was slight, the detention brief, and the victim was released immediately after the commission of the underlying crime, compelling the court’s conclusion that the kidnapping was incidental to the rape. Id. at 135. {¶ 13} In addition to the focus on the characteristics of the restraint, a separate animus exists if the asportation or restraint of the victim subjects him to a substantial increase in risk of harm separate from the underlying crime. State v. Johnson, 88 Ohio St.3d 95, 113, 2000-Ohio-276, 723 N.E.2d 1054; Logan, 60 Ohio St.2d at 135. For example, in State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 140-143, the defendant tied the victim to the leg of the bathtub after raping her and then set the house on fire. The defendant argued the rape and kidnapping charges, predicated on the act of tying the victim to the bathtub, should have been merged. The Ohio Supreme Court found the restraint subjected the victim to a substantial increase in risk of harm, due to the fire, separate from the harms associated with the rape. The kidnapping was therefore committed with a separate animus. Id. {¶ 14} If the restraint is not incidental to the underlying offense or exposes the victim to a substantial increase in harm, then the defendant’s conduct is deemed to have been committed with a separate animus. Where a court finds that the offenses were committed separately or with a separate animus for each offense, the result is that the allied offenses will not merge and the defendant can be sentenced on each.

{¶ 15} Turning to the facts of the current case, Hicks was convicted of kidnapping, in violation of R.C. 2905.01(A)(3), which provides that “[n]o person, by force, threat, or deception, * * * by any means, shall * * * restrain the liberty of the other person, [t]o terrorize, or to inflict serious physical harm on the victim or another.” Hicks was also restraint of Williams was committed with a separate animus. We understand the trial court

did not have the benefit of the Supreme Court decision in Johnson to guide it. We must, however, find the trial court erred when it found the kidnapping and felonious assault were not allied offenses and failed to merge Hicks’s convictions for both offenses. The first assignment of error is sustained.

{¶ 22} As the state correctly notes, if a court finds reversible error in the imposition of multiple punishments for allied offenses, we must reverse the sentence and remand for a new

sentencing hearing at which the state will elect which allied offense it will pursue against the defendant. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25.

We vacate the sentences on both the kidnapping and felonious assault counts. We remand for a new sentencing hearing consistent with and limited to this opinion.