COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59135 STATE OF OHIO : : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : ROBERT BOURN : OPINION : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-241655 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: TIMOTHY DOBECK Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: WARREN L. McCLELLAND 307 The Marion Building Cleveland, Ohio 44113-1569 -2- SPELLACY, J.: Defendant-appellant Robert Bourn ("appellant") appeals his conviction for one count of Kidnapping, in violation of R.C. 2905.01 and one count of Felonious Assault, in violation of R.C. 2903.11. The facts giving rise to the instant appeal are as follows: Appellant met Dixie Barr while he was an inmate at the Ohio State Reformatory in Mansfield, Ohio. Dixie Barr was a social worker at the institution where appellant was characterized as a model inmate. In August or September, 1986, appellant and Dixie Barr began a personal relationship after his release from prison. In November, 1986, Dixie Barr moved to Cleveland, Ohio with appellant. Eventually, the two got an apartment together at 2807 East 124th Street. The two of them lived in the upstairs apartment of a double house. At the end of June, 1989, Dixie Barr moved out of the apartment and moved in with a friend. According to Dixie Barr, she moved away from appellant because he was involved with drug dealers and drug trafficking. Appellant had also threatened her physically. After living with her friend for approximately one week, Dixie Barr returned to the residence located on East 124th Street. Apparently, appellant told her that he was no longer dealing in drugs and that he was receiving some counselling. -3- However, after four or five days back with appellant, the same activities were occurring. Dixie Barr claimed that appellant had taken all their savings and also sold their VCR. Therefore, she told him to leave or she was going to call the police. Appellant moved out and left his set of keys behind. Dixie Barr said that appellant did not have permission to return to the apartment. On July 12, 1989, Dixie Barr returned home at approximately 7:40 A.M., after working the night shift at LTV Steel. She immediately changed her clothes and went to bed. Dixie Barr testified that at exactly 8:03 A.M., she woke up and saw appellant standing next to her bed. He grabbed her around the neck and said, "So you think I'm crazy, bitch? I'll show you how crazy I am." Appellant told her that he was going to kill her and began to beat her in the face, her upper body, and in her stomach. Dixie Barr further stated that appellant took a pillow and began to suffocate her. Appellant also put a knife to her throat and told her that he was going to f___ her and then kill her. According to Dixie Barr, appellant penetrated her four or five times. This entire ordeal lasted for about four or five hours. Dixie Barr told appellant that she would not call the police. Soon after, appellant called his sister and she arrived at the apartment. Appellant permitted his sister to take Dixie Barr to the hospital with instructions to tell the doctors that she had fallen. However, the women went to the police station -4- first and Dixie Barr was then taken to the hospital in an ambulance. Later that evening, the Cleveland police took Dixie Barr home where they retrieved the knife and other evidence. Appellant had already turned himself in at the police station and asked to be arrested. Appellant informed the Cleveland Police that he had a drug problem and that he had just beaten up his girl friend. On August 21, 1989, appellant was indicted by the Cuyahoga County Grand Jury for one count of Aggravated Burglary, in violation of R.C. 2911.11; four counts of Gross Sexual Imposition, in violation of R.C. 2907.05; four counts of Rape, in violation of R.C. 2907.02; one count of Kidnapping, in violation of R.C. 2905.01; and one count of Felonious Assault, in violation of R.C. 2903.11. Each count carried a violence or aggravated felony specification. At his arraignment on August 28, 1989, appellant pleaded not guilty to the charges set forth in his indictment. On October 25, 1989, appellant's jury trial commenced. On November 3, 1989, the jury found appellant guilty of kidnapping and felonious assault. The jury did not reach a verdict on the other counts. On December 8, 1989, the State dismissed the remaining counts. Appellant was sentenced to a term of fifteen to twenty-five years for the kidnapping conviction and to a term of twelve to fifteen years for the felonious assault conviction. The trial court ordered these sentences to run concurrently. -5- Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND ERROR BY DENYING THE APPELLANT'S REQUEST FOR A PRETRIAL CONTINUANCE. II. BY ALLOWING THE PROSECUTOR, OVER OBJECTIONS, TO CROSS-EXAMINE THE APPELLANT CONCERNING THE DETAILS OF A PRIOR CONVICTION, THE TRIAL COURT VIOLATED THE OHIO RULES OF EVIDENCE AND DENIED THE APPELLANT A FAIR TRIAL. III. THE TRIAL COURT ERRED BY ADMITTING INADMIS- SIBLE HEARSAY OVER DEFENSE COUNSEL'S OBJEC- TION AND THEREBY DENIED APPELLANT HIS RIGHT TO CONFRONTATION AND DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. IV. THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE BY ENTERING JUDGMENT ON AND SENTENCING HIM BOTH FOR FELONIOUS ASSAULT AND KIDNAPPING WHICH UNDER THE CIRCUMSTANCES OF THE CASE WERE ALLIED OFFENSES OF SIMILAR IMPORT. In his first assignment of error, appellant argues that the trial court erred in denying his request for a continuance. Appellant contends that he should have been granted additional time in order to locate a missing witness and to procure alternate counsel. An accused does not have an absolute right to a continuance, and the decision to grant such a continuance rests within the sound discretion of the trial court. Thurston v. Maxwell (1965), 3 Ohio St. 2d 92, 93; See, also State v. Hall (June 18, 1987), Cuyahoga App. No. 53196, unreported. When ruling on a request for a continuance, the trial court must consider the length of the delay requested; whether other continuances have been -6- requested and received; the inconvenience to the parties, the witnesses, opposing counsel and the court; and whether the requested continuance is for legitimate reasons. State v. Unger (1981), 67 Ohio St. 2d 65, 67-68. Upon a careful review of the record in the instant case, we are unable to conclude that the trial court abused its discretion in not continuing the trial. It is clear from the record that several pretrials were conducted and that appellant had ample opportunity to locate all his witnesses and have them ready for trial. Furthermore, the trial court expressly found that appellant had competent and adequate counsel representing him, thus, there was no need to grant a continuance in order to find new counsel. For the foregoing reasons, we find that the trial court did not abuse its discretion in refusing to grant a continuance. Appellant's first assignment of error is without merit and is overruled. Appellant argues in his second assignment of error that he was denied a fair trial due to the prosecutor's improper cross- examination regarding his prior conviction. During cross-examination, the credibility of a witness may be attacked by eliciting from the witness the fact that he has been convicted of a prior crime. Evid. R. 609(A). The trial court has broad discretion in determining the extent to which testimony will be admitted under Evid. R. 609. State v. Wright (1990), 48 Ohio St. 3d 5. -7- Once the witness has admitted to a prior conviction, the basis for challenging the credibility of the witness has been established and no further testimony on the subject is necessary. State v. Smith (Dec. 13, 1984), Cuyahoga App. No. 48187, unre- ported. In determining whether an error was prejudicial or harmless, a reviewing court must first read the entire record, disregarding the objectionable material; if there is overwhelming evidence of appellant's guilt, aside from the disputed material, then it must hold that the error is not prejudicial but is harmless beyond a reasonable doubt and affirm the judgment of the trial court. Crime. R. 52(A); Chapman v. California (1967), 386 U.S. 18; See, also, State v. Davis (1975), 44 Ohio App. 2d 335. In this case, appellant admitted, during direct examination, that he was convicted in 1977 of kidnapping, robbery and rape. During cross-examination, the following exchange occurred regarding his prior conviction: Q You did, in December, in Shaker Heights abduct a woman in her automobile, did you not? A Yes. MR. RESNICK: Objection. THE COURT: Overruled. MR. RESNICK: As to time. THE COURT: December of when? MR. CORRIGAN: Well, I'll get the -- (Pause.) -8- Q December the 20th, 1976. Carol Baker. Do you recall the name? She was in a parking lot, her friend had run into the store on this December day, leaving the engine running, the door open, and you got into the car and abducted her and then raped her, A I can't remember all the details of what happened back then, but I guess that's what I'm on trial for now. (Tr. 409, 410). Upon a review of the entire record, after disregarding the above exchange, we find that there was substantial evidence of appellant's guilt of kidnapping and felonious assault. Accordingly, we conclude that the prosecutor's cross-examination of appellant regarding the details of his prior conviction constituted harmless error. Appellant's second assignment of error is not well taken and is overruled. Appellant contends in his third assignment of error that he was denied a fair trial by reason of the admission of inadmissible hearsay statements. Appellant specifically challenges the testimony of Stafford J. Sampson regarding his conversation he had with a co-worker, Deborah Oliver. Appellant claims that Stafford J. Sampson should have been prohibited from testifying about Deborah Oliver's conversation with appellant in which he told her that he wanted to make sure that Dixie Barr did not testify. -9- Evidence, which is connected to the accused, that tends to demonstrate the bribing of witnesses, or otherwise shows attempts to suppress or manufacture evidence, is admissible evidence against the accused. Meffold v. State (1920), 13 Ohio App. 106; State v. Bankston (Mar. 11, 1982), Cuyahoga App. No. 43772, unreported. In the instant case, we find that there was sufficient evidence from which the jury could reasonably conclude that Debra Oliver was acting on behalf of appellant when she told Stafford J. Sampson that appellant did not want Dixie Barr to make it to court. Thus, we conclude that the trial court did not err in admitting Stafford J. Sampson's testimony regarding his conver- sation with Debra Oliver on this issue. Appellant's third assignment of error is without merit and is overruled. In his fourth assignment of error, appellant argues that his conviction for kidnapping and felonious assault constitute allied offenses of similar import. Thus, appellant contends that his conviction and sentencing for both offenses cannot be sustained. R.C. 2941.25 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 -10- contain counts for all such offenses, and the defendant may be convicted of all of them. In construing R.C. 2941.25, the Ohio Supreme Court stated in State v. Logan (1979), 60 Ohio St. 2d 126, syllabus: In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (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 move- ment 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 convic- tions. Upon reviewing the facts of this case, we conclude that the offenses of kidnapping and felonious assault were not allied. Appellant's detention of Dixie Barr was for an extended period of time and placed her in extreme danger. We find that appellant's continuous beating of Dixie Barr was not incidental to the kidnapping and was sufficient to demonstrate a significance independent of the kidnapping. Cf. State v. Blankenship (1988), 38 Ohio St. 3d 116. Under the circumstances in this case, we find that the kidnapping and felonious assault offenses were committed with a separate animus and a conviction and sentence for each offense is not precluded under R.C. 2941.25. -11- Appellant's fourth assignment of error is not well taken and is overruled. Trial court judgment is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J., and FRANCIS E. SWEENEY, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .