[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24031

vs. : T.C. CASE NO. 09CR2425

TOMMIE JOHNSON, JR. : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 10th day of June, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst. Pros. Attorney, Atty. Reg. No.0061560, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee

Jeffrey T. Gramza, Talbott Tower, Suite 1210, 131 N. Ludlow Street, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Tommie Johnson, appeals from his conviction

and sentence for kidnapping, attempted murder, domestic violence

and tampering with evidence.

{¶ 2} On the evening of Sunday, July 26, 2009, following a 2

physical altercation with his girlfriend, Alishia Whitehead,

Defendant left Whitehead’s apartment at 420 N. Cherrywood Avenue

in Dayton, taking with him her two children: a two year old girl

named A.J. and an eight month old boy named T.J. About an hour

later, Whitehead called police, asking for help in finding her

children. Shortly thereafter, police located Defendant walking

alone on Garland Avenue in Dayton. Defendant refused to divulge

the whereabouts of A.J. and T.J. Defendant was arrested and booked

into the Montgomery County Jail.

{¶ 3} The next morning, Monday, July 27, 2009, police learned

that the two children, A.J. and T.J., had been found at around

8:50 a.m. in a closed trash bin behind Felty Electric Company on

East Second Street in Dayton. The two children were soiled and

dehydrated. A.J. and T.J. were taken by medics to Children’s

Medical Center for examination and treatment, and were eventually

placed in the care of Montgomery County Children’s Services.

{¶ 4} While investigating in the area where A.J. and T.J. were

found, police spoke with employees at Fordyce Finishing, a business

located on Bates Street about one block away. An employee there

had noticed a baby stroller in their trash dumpster. Closer

inspection revealed a stroller, baby bottle, and a bag containing

diapers and formula in the dumpster. Police then asked to view

the surveillance videotape from Fordyce Finishing’s surveillance 3

camera, which depicts Defendant putting the stroller and other

items in the dumpster before walking away. During a subsequent

interview with police, Defendant admitted putting the two young

children, A.J. and T.J. in a trash dumpster.

{¶ 5} Defendant was indicted on two counts of kidnapping in

violation of R.C. 2905.01(B)(1), two counts of kidnapping in

violation of R.C. 2905.01(B)(2), two counts of attempted murder

in violation of R.C. 2923.02(A) and 2903.02(A), three counts of

domestic violence in violation of R.C. 2919.25(A), and one count

of tampering with evidence in violation of R.C. 2921.12(A)(1).

Defendant filed a motion to suppress the statements he made to

police, which the trial court overruled following a hearing.

Defendant subsequently entered no contest pleas to all ten charges,

and was found guilty by the trial court. At sentencing the trial

court merged two of the domestic violence charges, counts seven

and eight, into the attempted murder charges, counts five and six.

The trial court refused to merge the four kidnapping charges.

The trial court sentenced Defendant to prison terms totaling

seventeen years.

{¶ 6} Defendant timely appealed to this court.

ASSIGNMENT OF ERROR

{¶ 7} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

SENTENCING APPELLANT INDIVIDUALLY FOR ALLIED CRIMES OF SIMILAR 4

IMPORT THAT SHOULD HAVE BEEN MERGED AT SENTENCING.”

{¶ 8} R.C. 2905.01(B) provides:

{¶ 9} “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:

{¶ 10} “(1) Remove another from the place where the other person

is found;

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

{¶ 12} Counts one and two of the indictment arise from

Defendant’s conduct in removing A.J. and T.J. from the apartment

at 420 N. Cherrywood and walking away with them. Defendant pled

no contest and was found guilty of violations of R.C. 2905.01(B)(1),

using any means to knowingly remove T.J. (count one) and A.J. (count

two), children under thirteen years of age, from the place where

they were found under circumstances that either created a

substantial risk of serious physical harm to them or caused physical

harm to them.

{¶ 13} Counts three and four of the indictment arise from

Defendant’s conduct in putting A.J. and T.J. in a large commercial 5

type trash bin that was too tall for them to get out of and then

closing the lid. Defendant pled no contest and was found guilty

of violations of R.C. 2905.01(B)(2), using any means to knowingly

restrain T.J. (count three) and A.J. (count four), children under

thirteen, of their liberty under circumstances that either created

a substantial risk of serious physical harm to them or caused

physical harm to them.

{¶ 14} The trial court imposed separate ten-year sentences on

each count of kidnapping and ordered that the sentences run

concurrently. The court refused to merge the two kidnapping

charges applicable to each child, stating: “the counts relating

to each child’s removal are separate offenses from the counts

relating to the restraint of each child.”

{¶ 15} Ohio’s multiple counts statue, R.C. 2941.25, provides:

{¶ 16} “(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.

{¶ 17} “(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 6

defendant may be convicted of all of them.”

{¶ 18} In the recent case of State v. Johnson,

,

, the Ohio Supreme Court announced a new test

for determining when offenses are allied offenses of similar import

that must be merged pursuant to R.C. 2941.25. Johnson overruled

the previous test announced in State v. Rance (1999),

, and held: “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.”

at syllabus.

The Supreme Court explained its holding at ¶47-51, stating:

{¶ 19} “Under R.C. 2941.25, the court must determine prior to

sentencing whether the offenses were committed by the same conduct.

Thus, 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.

{¶ 20} “In determining whether offenses are allied offenses

of similar import under R.C. 2941.25(A), the question is whether

it is possible to commit one offense and commit the other with

the same conduct, not whether it is possible to commit one without

committing the other. Blankenship, 38 Ohio St.3d at 119,

(Whiteside, J., concurring) (‘It is not necessary that

both crimes are always committed by the same conduct but, rather,

it is sufficient if both offenses can be committed by the same 7

conduct. It is a matter of possibility, rather than certainty,

that the same conduct will constitute commission of both offenses.’

[Emphasis sic]). 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.

{¶ 21} “If 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.’ Brown,

,

,

(Lanzinger, J.,dissenting).

{¶ 22} “If the answer to both questions is yes, then the offenses

are allied offenses of similar import and will be merged.

{¶ 23} “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.”

{¶ 24} Under the rule of Johnson, it is possible to commit a

violation of R.C. 2905.01(B)(1) and commit a violation of R.C.

2905.01(B)(2) with the same conduct. Removing a child from the

place where he or she is found, R.C. 2905.01(B)(1) involves some

form of restraint on that child’s liberty, which is likewise a 8

violation of R.C. 2905.01(B)(2). Accordingly, because it is

possible to commit a violation of both R.C. 2905.01(B)(1) and

2905.01(B)(2) with the same conduct, they are allied offenses of

similar import for purposes of R.C. 2941.25(A). Johnson at ¶48.

The further issue is whether the multiple kidnapping offenses

in this case were committed by the same conduct, that is, a single

act, committed with a single state of mind, Johnson, at ¶49, and

whether the exception to merger in R.C. 2941.25(B) applies.

{¶ 25} For purposes of determining criminal liability, an

offender’s “conduct . . . includes either a voluntary act, or an

omission to perform a voluntary act or duty that the person is

capable of performing.” R.C. 2901.21(A)(1). When a course of

conduct involves two or more acts or omissions undifferentiated

by time, place, or circumstance, merger of multiple criminal

offenses arising from that course of conduct is required because

the offenses involve the “same conduct.” R.C. 2945.25(A). E.g.,

Johnson. An exception to merger applies when the offenses are

nevertheless “committed separately or with a separate animus as

to each.” R.C. 2945.25(B).

{¶ 26} Defendant first removed T.J. and A.J. from the place

where they were found when he took them from the apartment at 420

N. Cherrywood and walked away with them. Subsequently, Defendant

also restrained T.J. and A.J. of their liberty when he put the 9

two small children into a large trash dumpster and closed the lid,

leaving the children trapped inside. Both offenses involved a

particular and continuing restraint of the same victims. However,

the kidnapping offenses in violation of R.C. 2905.01(B)(1) and

2905.01(B)(2) clearly did not involve a single act committed with

a single state of mind, being differentiated by time, place, and

circumstance. Accordingly, these offenses do not merge.

Johnson. The trial court did not err by separately convicting

and sentencing Defendant on each kidnapping offense.

{¶ 27} Defendant’s assignment of error is overruled. The

judgment of the trial court will be affirmed.

DONOVAN, J. And HALL, J., concur.

Copies mailed to:

R. Lynn Nothstine, Esq. Jeffrey T. Gramza, Esq. Hon. Michael L. Tucker