[Cite as State v. Fox,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 14 CAA10 0065 LARRY FOX

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 12CRI100409

JUDGMENT: Affirmed in part, Reversed in part and Remanded for Resentencing

DATE OF JUDGMENT ENTRY: August 26, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER Prosecuting Attorney 470 Olde Worthington Road, Suite 200 ERIC C. PENKAL Westerville, Ohio 43082 Assistant Prosecuting Attorney Delaware County Prosecutor's Office 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 14 CAA10 0065 2

Hoffman, P.J.

{¶1} Defendant-appellant Larry M. Fox appeals his convictions and sentence

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

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} At all times relevant herein, Appellant lived in a trailer park community in

Lewis Center, Ohio. Cory Tyo also lived in the same trailer park. Tyo and Franklin Pyle

commonly would hang out with Appellant and his brother, Harry Fox, at Appellant's

trailer. The group would often smoke marijuana and drink alcohol.

{¶3} In October of 2012, Appellant gave Pyle money to buy marijuana. Tyo

testified he called a friend to obtain the marijuana, who came and picked him up and

drove them to Columbus. Tyo and Pyle gave the friend the money for the marijuana,

but the friend never returned. Tyo and Pyle called Appellant and his brother to come

pick them up, explaining the money had been stolen and they were unable to buy the

marijuana. Appellant told Tyo he had a certain amount of time to pay him back.

{¶4} On October 16, 2012, Pyle told Tyo Appellant wanted to speak with him.

Tyo and Pyle went to Appellant's trailer. Harry Fox, Patrick Mann and Courtney Caudill

were there. Appellant's two minor sons were also in the trailer. Upon entering the

trailer, Tyo observed a Nazi flag on the counter and "death metal" music playing.

{¶5} About thirty minutes after they arrived, Tyo asked if he could go home,

and Appellant got up and locked the door stating no one was leaving. Appellant's

brother, Harry Fox, then stated, "Court is now in session" and put a knife against Tyo's Delaware County, Case No. 14 CAA10 0065 3

throat. Appellant told Tyo to stand up, and take off his shirt. Appellant then handcuffed

Tyo, and took off Tyo's pants.

{¶6} Tyo was then set on the floor naked and handcuffed, with his hands

behind his back. Appellant used a blow torch to heat a machete. He then ran the

machete through Tyo's hair, placed it on his back and touched his privates. He

threatened to cut off Tyo's private parts with the machete. The behavior continued for a

couple of hours, with Appellant questioning Tyo about his money and the drug deal.

{¶7} Appellant then stood Tyo up, faced him towards a camera, put a knife to

him and told him Tyo would perform "oral favors" or he would kill him. Tyo testified he

did not willingly participate, but did not have a choice. Appellant pushed Tyo onto his

knees, rubbed his genitals into Tyo's face and told Tyo if he hurt him or vomited,

Appellant would kill him. Tyo testified Appellant held the machete the entire time, and

did not set it down. Appellant then placed his erect penis in Tyo's mouth. Tyo began to

vomit, and asked for a trash can.

{¶8} Appellant told Tyo he would have to perform sexual favors in order to

repay him for the money stolen. He then took Tyo to the back room of the trailer.

Appellant's minor son was in the room, and was told to leave. Appellant testified after

the minor child left, he and Appellant were alone in the room.

{¶9} Appellant sat Tyo down on the bed, and put his erect penis into Tyo's

mouth. Appellant continued to hold the machete, and did not set it down. Tyo testified

they were in the back bedroom for approximately thirty minutes.

{¶10} Following the incident, Appellant told everyone in the trailer to leave and

not to speak of the incident or he would kill them. Delaware County, Case No. 14 CAA10 0065 4

{¶11} As a result, Appellant was indicted by the Delaware County Grand Jury on

the following counts:

{¶12} Count 1: Kidnapping, to terrorize or inflict serious physical harm, in

violation of R.C. 2905.01(A)(3), a felony of the first degree;

{¶13} Count 2: Kidnapping, to facilitate a felony, in violation of R.C.

2905.01(A)(2), a felony of the first degree;

{¶14} Count 3: Kidnapping, to commit rape, in violation of R.C. 2905.01(A)(4), a

felony of the first degree;

{¶15} Count 4: Abduction by Force, in violation of R.C. 2905.02(A)(2), a felony

of the third degree;

{¶16} Count 5: Rape, in violation of R.C. 2907.02(A)(2), a felony of the first

degree;

{¶17} Count 6: Rape, in violation of R.C. 2907.02(A)(2), a felony of the first

degree.

{¶18} The kidnapping counts were reduced to felonies of the second degree as

Appellant released the victim to a safe place, unharmed.

{¶19} Following a jury trial, Appellant was convicted of the charges as indicted.

{¶20} Via Judgment Entry of Sentence entered September 30, 2014, Appellant

was sentenced as follows:

{¶21} As to Count 1, Kidnapping, to terrorize or inflict serious physical harm, in

violation of R.C. 2905.01(A)(3), a felony of the second degree, a prison term of eight

years, Delaware County, Case No. 14 CAA10 0065 5

{¶22} As to Count 3, Kidnapping, to commit rape, in violation of R.C.

2905.01(A)(4), a felony of the second degree, a prison term of eight years, to be served

consecutive to the term imposed on Count 1,

{¶23} As to Count 5, Rape, in violation of R.C. 2907.02(A)(2), a felony of the first

degree, a mandatory prison term of eleven years, to be served consecutive to the term

imposed on Counts 1 and 3;

{¶24} As to Count 6, Rape, in violation of R.C. 2907.02(A)(2), a felony of the first

degree, a mandatory prison term of eleven years, to be served consecutive to the terms

imposed on Counts 1, 3 and 5;

{¶25} As to Count 4, Abduction by Force, in violation of R.C. , a felony of the

third degree, the charge merged with Count 1, Kidnapping, to terrorize or inflict serious

physical harm, as an allied offense of similar import, and is a lesser offense to the

charge of kidnapping;

{¶26} As to Count 2, Kidnapping, to facilitate a felony, in violation of R.C.

2905.02(A)(2), a felony of the second degree, the charge merged with Count 3,

kidnapping, to commit rape, for purposes of sentencing.

{¶27} Appellant was further classified a Tier III Sex Offender Registrant pursuant

to R.C. 2950.032.

{¶28} Appellant appeals, assigning as error:

{¶29} "I. THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE

JEOPARDY AND R.C. 2941.25 BY IMPOSING SENTENCE ON ONE COUNT OF

KIDNAPPING THAT MERGED INTO THE RAPE COUNTS. Delaware County, Case No. 14 CAA10 0065 6

{¶30} "II. APPELLANT'S DUE PROCESS RIGHTS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE THE PROSECUTION

FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT CONVICTIONS FOR

TWO COUNTS OF KIDNAPPING."

I.

{¶31} In the first assignment of error Appellant maintains the trial court erred in

failing to merge Count 3 Kidnapping to commit rape, with the rape charges.

{¶32} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” This protection applies to Ohio citizens through the

Fourteenth Amendment to the United States Constitution, Benton v. Maryland,

,

,

(1969), and is additionally guaranteed by the

Ohio Constitution, Article I, Section 10. The Double Jeopardy Clause protects against

three abuses: (1) “a second prosecution for the same offense after acquittal,” (2) “a

second prosecution for the same offense after conviction,” and (3) “multiple

punishments for the same offense.” North Carolina v. Pearce,

,

,

(1969), overruled on other grounds, Alabama v. Smith,

,

,

(1989).

{¶33} Revised Code, Section 2941.25 reads,

(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. Delaware County, Case No. 14 CAA10 0065 7

(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.

{¶34} In State v. Johnson,

,

, the Ohio

Supreme Court held,

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.

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

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 Delaware County, Case No. 14 CAA10 0065 8

defendant constituting commission of one offense constitutes commission

of the other, then the offenses are of similar import.

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).

If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

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.

{¶35} Recently, the Ohio Supreme Court in State v. Ruff,

,

addressed the issue of allied offenses, determining the analysis set forth in Johnson to

be incomplete. The Court in Ruff, held,

When the defendant's conduct constitutes a single offense, the

defendant may be convicted and punished only for that offense. When the

conduct supports more than one offense, however, a court must conduct

an analysis of allied offenses of similar import to determine whether the

offenses merge or whether the defendant may be convicted of separate

offenses. R.C. 2941.25(B). Delaware County, Case No. 14 CAA10 0065 9

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, and (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

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. Delaware County, Case No. 14 CAA10 0065 10

{¶36} Appellant concedes the first count of kidnapping in order to terrorize or

inflict serious physical harm, in violation of R.C. 2905.01(A)(3), would not merge with

the rape counts as the initial restraint had an independent significance apart from the

rapes. Tyo was initially restrained for the purpose of interrogation and to terrorize him.

A lengthy period of interrogation and torture occurred prior to the first act of rape.

{¶37} However, Appellant argues Count 3, kidnapping to commit rape, should

merge with the underlying rape charges.1 Specifically, Appellant maintains the ongoing

restraint was incidental to the acts of rape, the detention was brief and the movement

was slight, with no intervening moments of freedom. Appellant contends there was only

one act of kidnapping throughout the entire incident in the trailer as the victim was never

released.

{¶38} At trial herein, Tyo testified as to the events of the evening,

Q. What did he say and what happened?

A. He said court is now in session and then he put his knife against

my throat.

Q. Were you sitting at the time?

A. Yes, sir, I was.

Q. And talk to us about those initial moments, what happened?

A. I don't really - - I just looked over at my buddy Patrick and he

was just frozen and kind of like all the color was just drained from his face.

I was scared, I didn't really know what to do. He told me to stand up, so I

proceeded and I stood up and that's when Larry came from the bar with a

1 Appellant concedes there are two separate acts of rape separated by time and space, and he could properly be sentenced on each count of rape. Delaware County, Case No. 14 CAA10 0065 11

machete and put it up towards my stomach and then they told my [sic] to

take off my shirt and then he handcuffed me and then they took off my

pants.

***

Q. No underwear, no nothing?

A. I had underwear on, boxers.

Q. Did they take that off at some point?

A. Yes, they did.

Q. And when you say they handcuffed you, where did they handcuff

you?

A. Behind my back.

***

Q. Where did they put you, Cory?

A. They sat me down in the living room.

Q. All right. In front of everybody?

A. Yes, sir.

Q. Was everybody that you mentioned earlier still there?

A. Yes, sir.

Q. When you say they sat you down, were you sitting Indian style,

on your knees or something else?

A. Indian style.

Q. And you were naked?

A. Yes, sir. Delaware County, Case No. 14 CAA10 0065 12

Q. How did that make you feel?

A. Humiliated.

Q. Did you feel as though you could do anything?

A. Helpless.

Q. Why did you feel like that?

A. Everything was taken from me. Like my life is now in someone

else's hands.

Q. What specifically were they doing that made you feel like that?

A. Just trying to - - you know, they're just questioning me like they

want answers, like it had something to do with him getting robbed. He

was just - - he had the machete in his hands telling me I can't say nothing

to nobody.

Q. Who's he?

A. Larry Fox.

Q. He had a machete in his hands?

A. Yes, he did.

Q. And did he have anything else with him that day?

A. A blowtorch.

Q. Was he doing anything with that blowtorch and that machete?

A. Yeah. He heated up the machete with the blowtorch and ran it

through my hair and burnt it and you can smell it throughout the trailer.

Q. Is that a pleasant smell?

A. No, it wasn't. Delaware County, Case No. 14 CAA10 0065 13

Q. You say that he ran the machete through your hair?

A. Yes, sir.

Q. How often - - was that Larry that did that?

A. Yes, sir.

Q. And did he do that once, twice or?

A. He did it I believe about three times.

Q. Three times, okay. It was Larry each time?

A. Yes, sir.

***

Q. Is your hair the only place that you were, that that knife was

placed on you?

A. No, sir. He heated up the machete again with the blowtorch and

placed that on my back.

***

Q. From Mr. Fox, the defendant? Did they put the knife and

threaten you anywhere else on your body?

A. They put it on my private area.

Q. All right. And what did they say? What did he say?

A. He was just going to cut it off.

Q. Who?

A. Larry Fox.

Q. Threatening to cut your privates, your genitals off?

A. Yes, sir. Delaware County, Case No. 14 CAA10 0065 14

Q. How did that make you feel?

A. Real scared. I mean I really couldn't do nothing. I was helpless.

Q. So you guys were hanging out for about a half hour before this

stated, it that correct?

A. Yes, sir.

Q. How long was this going on for? Was this a five ten minute

ordeal?

A. No. Hours. At least a couple hours.

Q. What sort of things were they asking you, telling you?

A. They asked me if I knew anything else, anything about him. If I

was part of the, of him getting robbed in the drug deal and him taking off

and never coming back.

Tr. at 177-183.

{¶39} As to the second and third counts of kidnapping relative to kidnapping to

commit a felony and kidnapping to engage in sexual activity, Tyo testified,

Q. At some point in time did Mr. Fox, Mr. Larry Fox change tactics?

A. Change what, sir?

Q. Did he change what he was doing? Did he change - -

A. Yeah. He stood me up and faced me towards a camera that

was in his, camera facing the living room. He put his knife up to me and

then he told me that I was going to give him oral favors and I was going to

be willing to do it or else he was going to kill me. Delaware County, Case No. 14 CAA10 0065 15

Q. Was it mister - - was it the defendant that brought up oral

favors?

A. Yes, it was Larry Fox.

Q. And you said something after that that you would do it willingly?

A. Yes. Only because he had a knife up against my throat and - -

Q. That's my point. Could you have said that you were doing this

willingly?

A. Could I personally say that?

Q. No. at the time of the offense, did you ever say that you were

doing it willingly?

A. Only when he made me to.

Q. What was the defendant wearing?

A. He's wearing jeans and a shirt, I think they were jean shorts.

Q. And so he stood you up, did he put you back down or did he

stand you up for something else?

A. He put me back down.

Q. How did he put you down?

A. He put me on my knees.

Q. You were on your knees. Did he do anything with his genital

area?

A. Yeah. He started like rubbing it in my face while I was on the

ground and he took out his privates and said if I hurt him in any way or

vomited or anything, that he was just going to kill me. Delaware County, Case No. 14 CAA10 0065 16

Q. Did he have a knife on him at the time he was doing this?

A. He had his machete the whole time, he never sat it down.

Q. When you say his privates, do you mean his penis?

A. Yes, sir.

Q. And at any point was his penis erect?

A. Yes.

Q. Where did he put his erect penis?

A. In my mouth.

Q. Did you do that willingly?

A. No, sir, I didn't.

***

A. I had to get the trash can, tell them to get me the trash can so I

could vomit and he said if I get any on the floor, he was going to kill me or

if I get any on him.

Q. Did you actually vomit?

A. Yes. I don't know if it was like full vomit, it was like mucous and

gag.

Q. When he was raping you, was there anything brought up,

brought up about payments?

A. He said that's the only way I would be able to pay him off.

***

A. He said I would have to give him sexual oral favors to repay the

debt since he thinks I had something to do with him getting robbed. Delaware County, Case No. 14 CAA10 0065 17

Q. Up to this point, was any of this voluntary?

A. No, sir, it wasn't.

Q. Were you still handcuffed?

A. Yes, sir, I was.

Q. And were you still naked?

A. Yes, sir. Yes.

Q. And what did you say in response to the payment discussion

that he was having with you?

A. I mean I really didn't say nothing about it.

Q. Did you agree to a price or anything like that?

A. No.

Q. Not that you recall?

A. . . . No.

Q. At the certain point in time did he move you?

A. Yes, sir. He took me to the back room of the trailer.

***

Q. And where did he move you to?

A. He took me down the hallway and then I'm pretty sure his son

Jaiden was in here (indicating), so Jaiden had to come out and see

everything that was happening to go back into his room right here

(indicating) and then once Jaiden left, he continued and took me in here

(indicating) into his room and sat me down by about right here (indicating).

Q. When you say he sat you down? Delaware County, Case No. 14 CAA10 0065 18

A. He threw me on his bed. Face first.

Q. And . . . where did you land I guess?

A. He threw me down right about here (indicating) and I went long

ways right here (indicating).

Q. And what happened next?

A. He, he grabbed me up, started putting his private on me, around

my legs and my butt and then he stood me back up and then put me on

the ground.

I, I don't want to say threw me but just kind of laid me down, you

know what I mean, and then started raping me orally again like he did in

the living room. While continuing to hold his machete.

Q. Was he holding the knife the whole time?

A. Yes, sir, he was.

Q. Were you naked?

A. Yes, sir, I was.

Q. Was his penis erect?

A. Yes.

Q. And did, did his erect penis go into your mouth?

A. Yes, it did.

Q. How long were you in that back bedroom, Cory?

A. I would say probably about 30 minutes. 30, 40 minutes.

Tr. at 185-189. Delaware County, Case No. 14 CAA10 0065 19

In State v. Logan,

,

(1979), the Ohio Supreme Court held,

In formulating Ohio guidelines, we first note our disagreement with

those states which require movement of the victim to sustain a conviction

for kidnapping. The General Assembly has the power to define criminal

offenses in any manner it chooses, so long as it does not violate pertinent

constitutional provisions. We believe that prolonged restraint without

asportation may be as penologically significant as substantial asportation

and, under certain circumstances, will support a conviction for kidnapping

as a separate act or animus from that of rape.

Secret confinement, such as in an abandoned building or

nontrafficked area, without the showing of any substantial asportation,

may, in a given instance, also signify a separate animus and support a

conviction for kidnapping apart from the commission of an underlying

offense.

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. Delaware County, Case No. 14 CAA10 0065 20

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.***

(Emphasis added.)

{¶40} Upon review of the evidence presented at trial, we find the offense of

kidnapping charged in Count 3 (kidnapping to commit rape) was an offense of similar

import to the charge of rape that occurred in the bedroom. This kidnapping to commit

rape charge did not cause a separate identifiable harm to the victim from that of the

actual rape itself. The kidnapping was incidental to commission of the second rape and

was not committed with a separate animus. Accordingly, pursuant to Johnson and Ruff,

supra, we find the charges are allied offenses of similar import. We find the analysis set

forth by the Ohio Supreme Court in Logan supports this conclusion.

{¶41} Within Appellant's first assignment of error, he argues all three kidnapping

counts should merge together because there was only one continuous period of

restraint. We note Appellant did not separately assign this as error in compliance with

App. R. 16. Accordingly, we will not address the argument on the merits. We note the

trial court merged the second count of kidnapping with the third count of kidnapping.

Given our finding the third count of kidnapping merges with the last rape count, we

would find this argument is moot.

{¶42} Appellant's first assignment of error is sustained. Delaware County, Case No. 14 CAA10 0065 21

II

{¶43} In the second assignment of error, Appellant argues his state and federal

constitutional rights were violated because there was insufficient evidence to support

three separate counts of kidnapping. Given our disposition of Appellant's first

assignment of error and the trial court's merging of count two kidnapping with count

three kidnapping, we find this assignment moot.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur