[Cite as State v. Louis,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27909 : v. : Trial Court Case No. 2016-CR-3501 : JEAN BRUNEL PIERRE LOUIS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 13th day of March, 2020.

...........

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin, Ohio 43017 Attorney for Defendant-Appellant

.............

TUCKER, P.J. -2-

{¶ 1} Defendant-appellant Jean Brunel Pierre Louis appeals from his conviction for

kidnapping and gross sexual imposition. Louis contends he was denied a fair trial

because the State provided an unqualified interpreter at trial.1 He further contends trial

counsel was ineffective. Louis also claims the State did not present evidence sufficient

to sustain the conviction for kidnapping and that the conviction was against the manifest

weight of the evidence. Finally, Louis contends the trial court should have merged the

offenses for sentencing.

{¶ 2} We conclude Louis has failed to demonstrate that the interpreter used at trial

was unqualified or that trial counsel was ineffective. We further conclude the State’s

evidence was sufficient to support the conviction for kidnapping and that the conviction

was not against the manifest weight of the evidence. However, we agree that the trial

court erred in failing to merge the kidnapping and gross sexual imposition offenses.

{¶ 3} Accordingly, the judgment of the trial court is reversed in part and remanded

to the trial court for merger of the kidnapping and gross sexual imposition convictions and

resentencing thereon. The judgment of the trial court is otherwise affirmed.

I. Facts and Procedural History

{¶ 4} On November 17, 2016, Louis was indicted on one count of rape (force or

threat of force) in violation of R.C. 2907.02(A)(2), one count of kidnapping (sexual activity)

in violation of R.C. 2905.01(A)(4), and one count of gross sexual imposition (force) in

violation of R.C. 2907.05(A)(1). The matter proceeded to trial in July 2017. At the

1 We note that appellate counsel refers to appellant as “Pierre-Louis.” However, trial counsel referred to him as “Mr. Louis” throughout the course of the proceedings below. Thus, we will refer to appellant as “Louis.” -3-

conclusion of the trial, the jury acquitted Louis of the charge of rape, but the jury was

unable to reach a verdict regarding the counts of gross sexual imposition and kidnapping.

Louis was released from custody on a conditional own recognizance bond.

{¶ 5} A second jury trial commenced in January 2018. The State’s evidence was

as follows:

{¶ 6} The State presented the testimony of N.M., who testified that in June 2016,

she moved with her mother and brother from Maryland to Dayton. When they initially

arrived in Dayton, they stayed at Louis’s home along with Louis and his wife, their four

children, and Louis’s mother-in-law. N.M., age 15, and her mother slept in the living

room on a blow-up mattress. She testified that the household was so large and noisy

that she began going to the basement where it was quiet. She also testified that she

liked to use the mirror in the basement when she was braiding her hair.

{¶ 7} N.M. testified that on October 22, 2016, she was in the basement braiding

her hair when Louis came down to work out. She testified that she began to gather her

things to return upstairs when Louis told her she could stay and finish her hair. N.M.

testified that Louis turned on some music and began his workout. According to N.M.,

she was familiar with the music, which she described as Haitian and of a sexual nature.

N.M. testified that when she began to sing along with the music, Louis began to say, “I

know you know how to dance to these kind of songs * * * because I’ve seen you like

dance to it.” Tr. p. 189. She testified that he then asked her to dance with him. N.M.

testified that she declined because “those kind of dances, like, it’s just too close too, too

personal [and she did not] want to dance like that.”

N.M. testified that Louis

continued to ask her to dance and stated that they could stand apart from each other. -4-

{¶ 8} N.M. testified that she acquiesced, and when she began to dance, Louis

immediately grabbed her and pulled her toward him so that their chests were touching.

She testified Louis had an arm around her waist, and his grip was so strong she could not

get away from him. She also testified that the arm around her waist slid down to her

buttocks and that he put his other hand under her shirt. N.M. testified Louis touched her

breast with his mouth and hand and that his other hand began to slip inside her pants.

{¶ 9} N.M. testified Louis’s mother-in-law, Viviane Hubert, began to climb down the

stairs into the basement, and Louis, at this point, pushed N.M. away from him. She

testified that Hubert was in the basement for a few minutes speaking to Louis before

heading back up the stairs. N.M. testified she started to leave behind Hubert, but that

Louis grabbed her by the wrist, pulled her back to him, and stated he “wasn’t done with

[her].” Tr. p. 205. N.M. testified that Louis again wrapped an arm around her waist and

then used his other hand to put her hand on his penis. She testified his pants were pulled

down just below his penis. N.M. testified Louis instructed her to stroke his penis and that

she complied until he ejaculated. She testified Louis then hugged and thanked her, and

he pulled her in toward him and down onto a couch. She testified that her phone began

to ring, that she pretended her mother was calling, and she took that opportunity to retreat

up the stairs.

{¶ 10} N.M. admitted she did not inform anyone about the incident until the next

day when she spoke with an aunt who lived in New York. A few days later, N.M. and her

family moved into their own apartment in Dayton and thereafter, the police were called.

On cross-examination, N.M. admitted that she was very unhappy with the move to Ohio

and wanted to return to Maryland. N.M. also admitted she did not like Louis’s wife -5-

because she had broken N.M.’s computer tablet and had also called the police regarding

N.M.’s behavior.

{¶ 11} The State also introduced into evidence the clothing N.M. was wearing

during the encounter, which had been collected by the police and submitted for DNA

testing. The DNA results indicated Louis’s semen was on N.M.’s pants.

{¶ 12} Hubert testified on Louis’s behalf. She testified that during the four months

N.M. lived in the house, Louis had never talked to N.M. Hubert also testified that she

had never seen N.M. and Louis standing together in the basement. Hubert testified that

N.M. was unhappy. On cross-examination, Hubert reiterated her testimony that she

never saw Louis and N.M. interact with each other. Finally, Hubert testified that on

October 22, 2016, she saw N.M. in the basement but Louis was in his own room at the

time.

{¶ 13} Louis’s wife, Katty, also testified at trial. She testified that she had been

married to Louis for four years, that Louis had been in the United States for almost five

years, and that he had worked for two different companies during that time. She testified

that she and Louis offered N.M. and her family a place to stay in Dayton, and the family

lived with them for approximately four months. Katty testified that in July 2016, she had

to leave work early in order to give N.M. a ride home. Katty testified that, during the ride,

N.M. was cussing and indicated she was not happy living in Dayton. Katty also indicated

that she had to call the police regarding N.M. She testified there were numerous mirrors

in her home, including in the living room, which N.M. could have used instead of the one

in the basement.

{¶ 14} Following trial, Louis was convicted on both of the remaining counts. The -6-

trial court noted on the record that Louis had requested merger of the counts for the

purpose of sentencing. However, the trial court denied the request. Thereafter, the

court imposed a five-year prison term on the kidnapping conviction and an 18-month

prison term on the gross sexual imposition conviction. The sentences were ordered to

run concurrently. Additionally, the trial court designated Louis as both a Tier I and Tier

III sex offender. Louis appeals.

II. Interpreter Analysis

{¶ 15} Louis’s first assignment of error is as follows:

PIERRE-LOUIS WAS DENIED HIS RIGHT TO A FAIR TRIAL, HIS RIGHT

TO EQUAL PROTECTION, AND HIS RIGHT TO CONFRONT THE ONLY

WITNESS AGAINST HIM THROUGH THE USE OF UNQUALIFIED

INTERPRETERS.

{¶ 16} Louis claims the interpreter assigned by the trial court to assist him was not

certified or otherwise qualified, and that he was thus denied a fair trial. He makes the

same claim regarding the interpreter assigned to N.M.2

{¶ 17} Courts in Ohio have held that a defendant with limited use of the English

language is entitled to an interpreter. This right was explained in Columbus v. Lopez-

Antonio,

,

,

(M.C.):

2 While both the State and Louis indicate N.M. testified through an interpreter, we note the transcript indicates otherwise. Specifically, during N.M.’s testimony, the trial court continuously instructed her to raise her voice because she was difficult to hear. Further, there is no indication in the record that an interpreter was assigned to assist her. Because of this discrepancy, we have reviewed the actual recording of the trial and note that N.M. fluently testified in English. Thus, any argument regarding her interpreter lacks merit. -7-

The fundamental right to due process accorded to criminal

defendants by the Fifth and Fourteenth Amendments is compromised when

a defendant who is limited-English proficient (“LEP”) is not provided an

interpreter. “The failure to ensure that non-English speaking defendants

are given the same opportunity as others to be present, to speak in their

defense and to understand what is taking place, in whatever language they

possess, reaches constitutional proportions.” Such failure amounts to

denial of equal treatment and of due process.

***

The Sixth Amendment rights to confrontation and effective

assistance of counsel are violated when an LEP defendant does not

understand the testimony offered against him and is unable to properly

confer with his attorney.

(Footnote omitted.) Id. at ¶ 3-4.

{¶ 18} Sup.R. 88(A) provides that a court must appoint a foreign language

interpreter when (1) requested by a party who is non-English speaking or has limited

English proficiency and, (2) “the court determines the services of an interpreter are

necessary for the meaningful participation of the party.” “Sup.R. 88(D) provides, in

declining order of requirements[,] a list of the types of interpreters that a court shall

appoint.” State v. Barrie,

,

, ¶ 29 (10th Dist.). When an

interpreter is required, Sup.R 88(D)(1) requires the court to appoint “a Supreme Court

certified foreign language interpreter.” If such “does not exist or is not reasonably

available and after considering the gravity of the proceedings and whether the matter -8-

could be rescheduled to obtain a Supreme Court certified foreign language interpreter, a

court may appoint a provisionally qualified foreign language interpreter.” Sup.R.

88(D)(2). Finally, if a Supreme Court certified foreign language interpreter or

provisionally qualified foreign language interpreter “does not exist or is not reasonably

available to participate in-person at the case or court function and after considering the

gravity of the proceedings and whether the matter could be rescheduled to obtain a

Supreme Court certified foreign language interpreter or provisionally qualified foreign

language interpreter * * *, a court may appoint a foreign language interpreter who

demonstrates to the court proficiency in the target language and sufficient preparation to

properly interpret the proceedings * * *. Such interpreter shall be styled a ‘language-

skilled foreign language interpreter.’ ” Sup.R. 88(D)(3).

{¶ 19} When a language-skilled foreign language interpreter is appointed, the trial

court must “summarize on the record” its efforts to obtain a certified or provisionally

qualified foreign language interpreter to participate in the proceedings and “the reasons

for using a language-skilled foreign language interpreter.” Also, “[t]he language-skilled

foreign language interpreter's experience, knowledge, and training should be stated on

the record,” and the interpreter should be sworn in on the record. Sup.R. 88(D)(3).

{¶ 20} Here, the trial court detailed its efforts to obtain a Haitian-Creole certified

interpreter. The Court noted it had utilized the Supreme Court of Ohio certified

interpreter list, as well as local agencies and companies, in its search for an interpreter.

The trial court also utilized a company in Indiana specializing in providing interpreters.

The trial court noted that the search revealed there are no Haitian-Creole certified

interpreters in Ohio. -9-

{¶ 21} The court was eventually able to secure the services of Vanessa Lager to

act as an interpreter. Because she was not certified or provisionally qualified, the trial

court conducted a voir dire into Lager’s qualifications. Lager testified that her parents

were Haitian, that her native languages were Creole and French, and that the primary

language in her childhood household was Haitian-Creole. She testified that she learned

to speak English in school. She had an associate degree and was a licensed practical

nurse. Lager testified she had been training with and shadowing court interpreters but

she had not previously interpreted during a criminal trial; she had been in court and had

become familiar with legal terminology. Lager testified that, for several years, she had

been translating in the medical field for the local Haitian community, and she also had

worked with the Department of Job and Family services helping people apply for

government services. Lager indicated she had spent time with Louis and had no

hesitation about her ability to translate for him. Based upon its examination, the trial

court qualified Lager as a Haitian-Creole interpreter.

{¶ 22} Louis has not demonstrated that Lager was not qualified to interpret or that

she was inaccurately interpreting. Indeed, Louis indicated he met with Lager and was

very comfortable using her as his interpreter. Moreover, the trial court conducted a

lengthy colloquy with Lager on the record, inquiring into subjects including her educational

background, familiarity with the subject language, and experience interpreting. The trial

court informed her that if, during the trial, anything occurred that she did not understand

or if she needed anything restated or repeated, she should so inform the court. The

record shows N.M. testified in a very soft-spoken manner, making it difficult to hear her,

and that, consistent with the trial court’s instruction, Lager requested on several occasions -10-

that N.M. repeat her testimony.

{¶ 23} We find no merit in Louis’s argument regarding Lager’s qualifications to act

as an interpreter. Also, there is nothing in the record to indicate that Lager interpreted

inaccurately.3 Louis’s first assignment of error is overruled.

III. Ineffective Assistance of Counsel/Speedy Trial Analysis

{¶ 24} Louis’s second assignment of error states:

IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL FOR PIERRE-

LOUIS’S TRIAL COUNSEL NOT TO MOVE FOR DISMISSAL ON SPEEDY

TRIAL GROUNDS, BECAUSE THE STATE VIOLATED HIS RIGHT TO A

SPEEDY TRIAL.

{¶ 25} Under this assignment of error, Louis contends trial counsel rendered

ineffective assistance by failing to raise a claim that the State violated his right to a speedy

trial.

{¶ 26} “Claims of ineffective assistance of trial counsel are reviewed under the

analysis set forth in Strickland v. Washington,

,

,

Louis’s argument, citing to Sup.R. 88(F), that the trial court had a mandatory obligation to appoint at least two interpreters is unavailing. Sup.R. 88(F) does state that a court, to ensure an accurate interpretation, shall appoint at least two interpreters when “[t]he case or court function will last two or more hours and require continuous, simultaneous, or consecutive interpretation.” Sup.R. 88(F)(1)(a). In consideration of this language, the trial court stated during the hearing resulting in Lager’s appointment that all trial sessions would be between 60 and 90 minutes, after which the court would take a 10 to 15 minute break. The record reflects adherence to this schedule, and, as discussed, the record does not support a conclusion that Lager’s interpretation was inaccurate. Also, the Rules of Superintendence are “administrative directives” that do not “function as rules of practice and procedure,” and, as such, do not “create any individual rights.” In re S.B., 2d Dist. Greene Nos. 2014-CA-19, 2014-CA-20,

, quoting Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018,

, ¶ 12. (Other citations omitted.) -11-

674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley,

,

(1989).” State v. Sewell, 2d Dist. Montgomery No. 27562, 2018-

Ohio-2027, ¶ 63. “Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel's performance.”

quoting Bradley at paragraph two of the syllabus. In order to establish prejudice, “the

defendant must prove that there exists a reasonable probability that, were it not for

counsel's errors, the result of the trial would have been different.”

quoting Bradley at

paragraph three of the syllabus.

{¶ 27} The sole issue before us relates to whether counsel improperly failed to

make a claim that Louis’s right to a speedy trial was violated.

{¶ 28} The right to a speedy trial is guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Section 10, Article I of the Ohio

Constitution. This constitutional mandate was codified in Ohio by the enactment of R.C.

2945.71, which designates specific time limits for bringing a defendant to trial. A

defendant charged with a felony must be brought to trial within 270 days of arrest. R.C.

2945.71(C)(2). Each day that the defendant is held in jail in lieu of bail counts as three

days in computing this time. R.C. 2945.71(E). The time may be tolled by certain events

delineated in R.C. 2945.72(C), (E) and (H), including continuances granted as a result of

defense motions and any reasonable continuance granted other than upon the request

of the accused. Compliance with these statutes is mandatory and the statutes “must be

strictly construed against the state.” State v. Cox, 12th Dist. Clermont No. CA2008-03-

028,

. -12-

{¶ 29} Louis was charged with three felony offenses. Thus, R.C. 2945.71

required the State to bring him to trial within 270 days of his arrest. Further, Louis was

in jail on the pending charges, thereby triggering the triple-count provision of the statute.

The parties do not dispute that the time began to run on November 17, 2016, when Louis

was arrested. Our review of the record shows that Louis executed a limited time waiver

on December 21, 2016. That waiver extended to February 28, 2017. On January 25,

2017, during the pendency of the waiver period, Louis filed a motion to suppress. He

also filed a supplemental motion to suppress on June 9, 2017. The motion to suppress

was denied on July 5, 2017 and the trial commenced on July 10, 2017.

{¶ 30} As of the commencement of trial, Louis had spent 708 days in jail under the

triple-count provision. However, 588 of those days were chargeable to him for speedy-

trial purposes. Based upon this record, he was entitled to 105 days of speedy-trial time

under the triple-count provision for the period from his arrest until he filed a waiver and

the motion to suppress. He was entitled to another 15 days for the time that passed

between the denial of the suppression motion and the commencement of the trial. Thus,

the State did not violate the right to a speedy trial, as Louis was brought to trial for the

first time within 120 days.

{¶ 31} We turn next to the time period between the first and second trials. The

Ohio Supreme Court has held that the provisions of R.C. 2945.71 are not applicable to

retrials. State v. Fanning,

,

(1982). The Court stated

that “[i]t is noteworthy that the statute does not include any reference whatever to retrials.

The standard to be applied, therefore, is basically reasonableness under federal and state

constitutions.”

-13-

{¶ 32} The reasonableness standard under the constitutional right requires a four-

factor analysis: the length of the delay, the reason for the delay, whether the defendant

requested a speedy trial, and whether he or she was prejudiced by the delay. State v.

Branch,

,

(8th Dist. 1983), citing Barker v. Wingo,

,

,

(1972).

{¶ 33} Having reviewed the record, we note that the verdict entry of a mistrial on

the charges of gross sexual imposition and kidnapping was entered on July 18, 2017. At

that time, Louis was released on his own recognizance. A scheduling conference was

held on September 14, 2017, at which time trial was set for January 8, 2018. A final

pretrial was conducted on December 15, 2017. The trial, which commenced as

scheduled, occurred within 172 days of the entry of the verdict in the first trial.

{¶ 34} The record demonstrates that the victim and her family had moved back to

Maryland; thus, the State had to make arrangements for her travel back to Ohio.

Additionally, Louis admits there were problems in obtaining interpreters for trial.

Although he claims that counsel was ineffective for failing to make a speedy trial claim

during this period, we note that the record demonstrates that Louis was out of jail during

the period between the trials and that he faced the potential of deportation if convicted.

He was also working in order to support his family during this time. Thus, it is entirely

possible that counsel did not press the issue at Louis’s own request.4 Therefore, while

the delay in bringing Louis to retrial was somewhat lengthy, we are not persuaded that

the delay was constitutionally unreasonable. Nor can we say that trial counsel was

4 Having previously signed a speedy trial time waiver, Louis was certainly aware of his right to a speedy trial. -14-

deficient for failing to raise the issue.

{¶ 35} The second assignment of error is overruled.

IV. Sufficiency and Manifest Weight of the Evidence Analysis

{¶ 36} The third and fourth assignments of error asserted by Louis state:

THE STATE’S EVIDENCE AGAINST PIERRE-LOUIS OF KIDNAPPING IS

LEGALLY INSUFFICIENT AS A MATTER OF LAW.

THE EVIDENCE WEIGHS MANIFESTLY AGAINST CONVICTING

PIERRE-LOUIS OF KIDNAPPING.

{¶ 37} Louis contends the State did not present evidence sufficient to sustain the

conviction for kidnapping and that the conviction was not supported by the manifest

weight of the evidence.

{¶ 38} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). In reviewing such an argument, we apply the test from State v.

Jenks,

,

(1991), which states that:

An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most -15-

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted).

at paragraph two of the syllabus.

{¶ 39} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this type of review, a

“ ‘court reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ”

, quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 40} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-

881,

, ¶ 11. Accord State v. Winbush,

,

,

¶ 58 (2d Dist.). Therefore, “a determination that a conviction is supported by the weight

of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)

State v. Braxton, 10th Dist. Franklin No. 04AP-725,

,

,

¶ 15.

{¶ 41} R.C. 2905.01(A)(4) sets forth the elements of kidnapping as: “[n]o person, -16-

by force, threat, or deception, * * * shall remove another from the place where the other

person is found or restrain the liberty of the other person * * * [t]o engage in sexual activity

* * * with the victim against the victim's will.” Sexual activity is defined as “sexual conduct

or sexual contact, or both.” R.C. 2971.01(C). Sexual contact includes “any touching of

an erogenous zone of another, including without limitation the thigh, genitals, buttock,

pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing

or gratifying either person.” R.C. 2907.01(B).

{¶ 42} Louis argues that the State “did not demonstrate ‘removal’ or ‘restraint,’

because under the statute, the State must prove that Pierre-Louis ‘removed’ or

‘restrained’ N.M. such that she was ‘beyond immediate help’ as described in the

Kidnapping statute’s commentary[.]” The portion of the commentary upon which Louis

relies states:

An offense under this section does not depend on the distance the victim is

removed or the manner in which he is restrained. Rather it depends on

whether the removal or restraint is such as to place the victim in the

offender's power and beyond immediate help, even though temporarily.

Thus, removal of the victim may be for only a short distance, such as from

one car to another. Also, the restraint involved need not be actual

confinement, but may be merely compelling the victim to stay where [she]

is.

(Citation omitted.)

{¶ 43} The testimony reveals that Louis grabbed N.M. firmly by the wrist and pulled

her to him when she attempted to exit the basement with Hubert. He then kept an arm -17-

around her so that she was unable to get away from him. Thus, a jury could have

reasonably found both removal, based upon N.M.’s attempt to leave the basement, as

well as restraint. Further, the testimony revealed that while he had her so restrained,

Louis used his hand to place N.M.’s hand on his penis. Thus, the jury could have

reasonably found that the removal and restraint were for the purpose “to engage in sexual

activity.”

{¶ 44} Louis argues that this evidence is insufficient because it does not

demonstrate N.M. was beyond immediate help. He notes that other people were in the

house during the commission of the offense, and that N.M. did not yell for help. He also

notes that she did not ask for help when Hubert came into the basement.

{¶ 45} We have not found, nor has Louis cited, any statutory or case law definition

of the phrase “beyond immediate help.” Likewise, we have not found any authority for

the claim that a minor victim must seek help during the commission of an offense. At the

time of the offense, N.M. was 15 years old and living as a guest in Louis’s home. Louis

was 49 at the time. N.M. was of slight build, five feet three inches tall and weighing only

115 to 120 pounds, while Louis, who lifted weights every day, was approximately a foot

taller. N.M.’s testimony indicated that when Hubert was in the basement, N.M. did not

say anything to her because she was “lost,” or “wasn’t there mentally,” because she was

trying to understand what had just happened to her. She also testified that she did not

know Hubert well enough to say anything to her. Further, there was no evidence that

anyone would have been able to hear her even if she had yelled while in the basement.

{¶ 46} We cannot conclude that N.M.’s failure to seek help rendered the evidence

insufficient to sustain a conviction for kidnapping. -18-

{¶ 47} Louis also claims that the kidnapping conviction was not supported by the

weight of the evidence. His argument in this regard centers on the claim that his

evidence was “more believable and persuasive.”

{¶ 48} We note that Louis’s trial strategy centered upon the claim that N.M. was

not credible. Both his attorney’s closing argument, and the testimony of his wife and her

mother attempted to portray N.M. as a very unhappy, troubled teen forced to live in Dayton

who fabricated the offense as a means to enable her to move back to Maryland.

{¶ 49} “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288,

, *4 (Aug. 22, 1997). “The

testimony of a single witness, if believed by the finder of fact, is sufficient to support a

criminal conviction.” State v. Barrie, 10th Dist. Franklin No. 15AP-848,

, quoting State v. Booker, 10th Dist. Franklin No. 15AP-42,

.

{¶ 50} The jury was free to disregard the testimony and argument presented by

Louis and to give more credence to the evidence presented by the State. Further, we

find nothing inherently incredible in N.M.’s testimony. Therefore, we cannot conclude

that this is the exceptional case in which the jury clearly lost its way and created a manifest

miscarriage of justice.

{¶ 51} The third and fourth assignments of error are overruled. -19-

V. Merger Analysis

{¶ 52} Louis’s fifth assignment of error is as follows:

PIERRE-LOUIS’S KIDNAPPING AND GROSS SEXUAL IMPOSITION

COUNTS SHOULD HAVE BEEN MERGED.

{¶ 53} In this assignment of error, Louis argues that the trial court erred when it did

not merge his offenses of kidnapping and gross sexual imposition for sentencing. We

agree.

{¶ 54} The Double Jeopardy Clauses of the Fifth Amendment to the United States

Constitution and the Ohio Constitution, Article I, Section 10, protect a defendant against

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

,

,

(1969); State v. Martello,

, 2002-

Ohio-6661,

. In Ohio, this constitutional protection is codified at R.C.

2941.25. R.C. 2941.25(A) provides that “[w]here 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.” The statute further provides that “[w]here 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.” R.C. 2941.25(B).

{¶ 55} In State v. Ruff,

,

,

, the

Ohio Supreme Court clarified this statutory standard and held that if a defendant's conduct -20-

supports multiple offenses, the defendant can be convicted of all of the offenses if any

one of the following is true: “(1) the conduct constitutes offenses of dissimilar import, (2)

the conduct shows the offenses were committed separately, or (3) the conduct shows the

offenses were committed with separate animus.”

at paragraph three of the syllabus,

citing R.C. 2941.25(B). Two or more offenses are of dissimilar import 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.”

at

paragraph two of the syllabus.

{¶ 56} Additionally, the Supreme Court of Ohio has acknowledged that “implicit

within every forcible rape * * * is a kidnapping” because the victim's liberty is restrained

during the act of forcible rape. State v. Logan,

,

(1979). The same logic applies to gross sexual imposition and kidnapping. State v.

Sarr, 2d Dist. Montgomery No. 28187,

. In Logan, the court provided

the following guidelines for determining whether kidnapping and another offense of the

same or similar kind were committed with a 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 -21-

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.

Logan at syllabus.

{¶ 57} Even though Logan predates Ruff, this court and others continue to apply

the guidelines set forth in Logan in determining whether kidnapping and another offense

were committed with a separate animus, in accordance with the third prong of the Ruff

test. State v. Mpanurwa,

,

(2d Dist.).

{¶ 58} “An appellate court should apply a de novo standard of review in reviewing

a trial court's R.C. 2941.25 merger determination.” State v. Williams,

,

,

.

{¶ 59} As stated previously, kidnapping as charged in this case involves the use

of force to restrain the liberty of another in order to engage in sexual activity. Sexual

activity is defined to include sexual contact. Gross sexual imposition also involves the

use of force to compel another person to have sexual contact with another.

{¶ 60} The State maintains that the gross sexual imposition was completed prior

to the kidnapping. Specifically, the State argues that the gross sexual imposition

occurred when Louis held N.M. to him and touched her breast with his mouth and hand,

and that it was complete before Hubert entered the basement. The State further argues

that the kidnapping occurred when Louis subsequently restrained N.M. to prevent her

from leaving the basement. The State argues that he restrained her in order to again

sexually assault her. Finally, the State contends that Hubert’s “interruption was an

intervening event which separated the offense of” gross sexual imposition from the -22-

kidnapping.

{¶ 61} We find the State’s argument disingenuous. In the bill of particulars, the

State identified the kidnapping as beginning when Louis restrained N.M. by grabbing her

arm and preventing her from leaving the basement with Hubert. It identified the gross

sexual imposition as occurring when Louis forced N.M. to touch his penis. Obviously,

the touching of the penis occurred immediately after the identified kidnapping. Thus, in

reliance on the bill of particulars as provided by the State to Louis prior to trial, we resolve

the issue in Louis’s favor and conclude that the jury convicted him for the gross sexual

imposition that occurred immediately after he grabbed N.M. by the arm and prevented

her from leaving the basement.

{¶ 62} Based upon this assessment, the first three questions set forth in Ruff can

be easily answered. In this case, there was only one victim, the offenses were not

committed separately, and the resulting harm from each offense was the same. Louis

restrained N.M. and prevented her from leaving the basement in order to commit the

offense of gross sexual imposition. He then pulled her over to him and placed her hand

on his penis. N.M. testified that the entire incident in the basement, including the

touching of N.M.’s breasts, lasted no longer than 20 minutes. The offenses were similar

in import and were not committed separately. The third question requires us to look to

the holding in Logan. Here, the restraint of N.M. was merely incidental to the gross

sexual imposition. Although the confinement was secretive, i.e. in the basement, the

restraint was not prolonged and the movement was not substantial. Also, we cannot say

that N.M. was subjected to a substantial risk of harm separate and apart from the gross

sexual imposition. -23-

{¶ 63} Based upon these facts, we cannot conclude that Louis was motivated by

something other than the intended sexual assault. Nor can we conclude that the restraint

had any significance apart from facilitating the gross sexual imposition. Thus, we

conclude that Louis was entitled to a merger of the offenses of gross sexual imposition

and kidnapping.

{¶ 64} The fifth assignment of error is sustained.

VI. Conclusion

{¶ 65} Louis’s first, second, third and fourth assignments of error are overruled.

Louis’s fifth assignment of error is sustained. Accordingly, the judgment of the trial court

is reversed in part and remanded to the trial court for merger of the kidnapping and gross

sexual imposition convictions and resentencing thereon. In all other respects, the

judgment of the trial court is affirmed.

.............

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter April F. Campbell Jean Brunel Pierre Louis Hon. Richard Skelton