COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59764 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LEWIS CHANDLER : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-248244 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL E. MURMAN 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 - 2 - KRUPANSKY, J.: Defendant appeals from his convictions for rape, R.C. 2907.02, and kidnapping, R.C. 2905.01, arising out of an incident that occurred the evening of December 23 and into the day of December 24, 1989. The relevant facts follow. Nicole Hambrick, a sixteen-year-old girl, was working at her job as a sales clerk in a store at Euclid Square Mall the evening of December 23, 1989. She had plans to meet after work a young college man whom she had known for a short time named Troy Williams. Troy was to pick her up from work and drive her to her girlfriend's house where she was staying for the weekend. Nicole was permitted to leave work early, so she telephoned the young man's home. The call was answered by defendant, whom Nicole knew as Troy's "stepfather." Defendant told her to wait for a half hour; defendant said he would pick her up and take her home if she did not hear from Troy. A half-hour later, Nicole called again and said she was still waiting. Defendant told her he would come and get her. A few minutes thereafter, defendant arrived at the mall and told Nicole he would take her to Troy's home. She thereupon got into the car defendant was driving. Defendant then drove to an apartment building. He said he would go in and see if Troy was home yet; Nicole waited in the car. Defendant returned after a few minutes with a duffel bag and told Nicole Troy was not home. However, defendant said he - 3 - would take her to the hotel room he and Troy's mother had rented for Troy while Troy was home from college. Defendant then drove to a nearby Envoy Inn Motel and entered the motel office. He registered for a room with the desk clerk on duty that evening, then he returned to the car and told Nicole the clerk told him Troy had been there and had told the clerk he would return within fifteen minutes. Defendant sug- gested they wait. He drove his car to the parking area near room 115, parked and let Nicole into the room. Nicole immediately made a call to the girlfriend with whom she was staying, telling her friend she was still waiting for Troy to take her home. Time passed; defendant told Nicole they should wait longer. He talked with her and smoked a marijuana pipe. At one time he went out to the car and retrieved the duffel bag and placed it in the room. Nicole made at least one other phone call to her friend during this time, giving her friend essentially the same information as before. After he and Nicole had been in the motel room some time, defendant went into the bathroom and emerged with a hunter's knife. Defendant thereupon ordered Nicole to undress. Nicole took off some of her clothes; he told her again to get undressed. She took off more clothes. At this time some of her body was exposed. Nicole had been born with congenital defects of her pelvic area and she was required to wear a Foley bag as a result and bore the scars of several surgeries. Defendant thereupon - 4 - ordered her to get dressed again. He then told her they would drive around to look for Troy. They returned to defendant's car and left the motel. Defendant made a few stops and then returned to the motel. Once they were back in the motel room he tied Nicole's hands behind her back and ordered her to perform oral sex upon him. He played a pornographic film on a VCR he obtained from the duffel bag and told her to watch it. He ordered her again to perform oral sex upon him. He then untied her, told her to undress and thereafter attempted vaginal intercourse and had anal inter- course with Nicole. At about 4:00 a.m. on the morning of December 24, 1989, defendant left the room to get something. While he was gone, Nicole made a hurried, whispered call to her girlfriend. The call was cut short when defendant re-entered the room and took the telephone from Nicole. He then attempted further sexual intercourse with Nicole. At approximately 7:30 a.m., defendant permitted Nicole to dress. After she had done so she managed to open the door to the room and escape. She immediately went to the motel's front desk, screaming that she had been raped. The clerk on duty called the Euclid police and fire departments. Nicole was thereafter conveyed to the hospital where she was treated. Nicole gave an oral statement concerning the incident to the police, along with a description of her assailant. - 5 - On December 25, 1989, the police went to Troy Williams' home with an arrest warrant for the defendant. The warrant was for an outstanding felony theft offense. After the officers explained they were looking for defendant pursuant to an arrest warrant in connection with a theft, Troy Williams let the officers into the apartment. Avaugn Williams, Troy's mother and the lessee of the apartment, then permitted the officers to search the apartment. Defendant was found hiding in a bedroom closet. The police asked permission from Avaugn Williams to take two particular items, viz., the tape which was in the telephone answering machine and a pornographic videotape sitting on top of the television set. She consented. After his arrest on December 25, 1989, defendant was incar- cerated on the felony theft charge. On December 27, 1989, defendant was formally charged in the Euclid Municipal Court with rape and kidnapping in connection with the incident involving Nicole Hambrick. The case was bound over to the Cuyahoga County Grand Jury, which thereafter, on February 22, 1990, indicted defendant on three counts of rape, R.C. 2907.02, and one count of kidnapping, R.C. 2905.01. Defendant's jury trial commenced in the Cuyahoga County Common Pleas Court on March 26, 1990. At trial, while the state was presenting its case, defendant made a motion to suppress the evidence police officers had taken from the Williams' apartment. The court thereupon halted the trial and held a hearing on the motion. After hearing the - 6 - testimony of the state's witnesses and the defendant, and reviewing the evidence pertinent thereto, the trial court overruled defendant's motion. The case then proceeded. After the state had presented its case the defendant presented only one witness, Avaughn Williams, his girlfriend, on his behalf; defendant himself did not testify. The jury then received instructions from the trial court and began deliberations. At this time the trial court held a hearing on another late motion filed by defendant, viz., a motion to dismiss the case on the ground the state had failed to bring defendant to trial within the time period specified by R.C. 2945.71. The trial court heard counsel's arguments on defendant's motion and thereafter overruled it. The jury found defendant guilty as charged in the indict- ment. The trial court immediately sentenced defendant to be incarcerated for a term of ten to twenty-five years on each of the four counts, the sentences to run consecutively. Defendant now timely appeals his convictions, citing three assignments of error for review. Defendant's first assignment of error follows: THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S MOTION FOR DISCHARGE BASED ON THE STATE'S FAILURE TO ABIDE BY SPEEDY TRIAL REQUIREMENTS. This assignment of error lacks merit. Defendant argues the state did not bring him to trial - 7 - within the time period specified by R.C. 2945.71. This argument is unpersuasive. R.C. 2945.71, time within which hearing or trial must be held, states in pertinent part as follows: (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * (E) For purposes of computing time under divisions *** (C)(2) *** of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. The file in the case sub judice fails to reflect whether defendant was being held in jail as a parole violator and/or on the felony theft charge, however, assume arguendo the defendant was being held in jail in lieu of bail on this charge, the statute therefore required defendant be brought to trial within ninety days of his arrest on the pending charge. State v. MacDonald (1976), 48 Ohio St. 2d 66. However, the requirements of R.C. 2945.71 must be read in conjunction with Crim. R. 45, which states in relevant part the following: RULE 45. TIME (A) Time: Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the date of the act or even from which the designated period of time begins to run shall not be included. The last day of the period so computed - 8 - shall be included, unless it is a Saturday, Sunday, or legal holiday, in which even the period runs until the end of the next day which is not Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in computation. (Emphasis added.) See, e.g., State v. Bowman (1987), 41 Ohio App. 3d 318. On December 25, 1989, defendant was arrested on a felony theft charge unrelated to the rape charges herein. His arrest on the charges arising out of the incident with Nicole Hambrick did not occur until December 27, 1989. Defendant thereafter if held in jail in lieu of bail on these charges, the relevant time for computation under R.C. 2945.71(E) and Crim. R. 45 began on December 28, 1989. Defendant's trial commenced on March 26, 1990. This was within the ninety day time limit specified by R.C. 2945.71. Thus, the trial court did not err in overruling defendant's motion to dismiss the case for failure to abide by statutory "speedy trial" requirements. Accordingly, defendant's first assignment of error lacks merit and is overruled. Defendant's second assignment of error follows: THE CONVICTIONS FOR KIDNAPPING AND RAPE MUST BE MERGED AS THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT AND THE DEFENDANT CANNOT BE CONVICTED OF BOTH. This assignment of error also lacks merit. Defendant argues his convictions for both kidnapping and rape are improper under R.C. 2941.25 since the same contempora- - 9 - neous conduct served as the basis for the convictions and the acts were not committed with separate animus. This argument is not persuasive. R.C. 2941.25 provides as follows: 2941.25 Multiple counts. (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. Regarding R.C. 2941.25, the Ohio Supreme Court has recently stated the following: Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses corres- pond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship [1988], 38 Ohio St. 3d 116, 117, 526 N.E. 2d 816, 817, approved and followed.) Newark v. Vazirani (1990), 48 Ohio St. 3d 81, syllabus. - 10 - In State v. Logan (1979), 60 Ohio St. 2d 126, the court established the following guidelines to determine whether kid- napping and rape are committed with a separate animus as to each under R.C. 2941.25(B): (a) Where the restraint or movement of the victim is merely incidental to a separate under- lying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restrained 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. See, also, State v. Carter (Nov. 14, 1991), Cuyahoga App. No. 59223, unreported. In the case sub judice, the evidence reveals that the offenses of kidnapping and rape were not allied offenses of similar import. The victim, Nicole Hambrick, was transported to the hotel room by defendant, who kept her there initially by deceiving her into thinking Troy Williams was going to appear to take her home. Defendant then pulled out a knife to intimidate and threaten Nicole. Defendant compelled Nicole to remove her clothes, put them back on again, and then accompany him as he drove around for a time. Thereafter he returned with Nicole to the motel room and it was at this point that the rape began. - 11 - Defendant's asportation and restraint of his victim thus subjected Nicole to a substantial risk of an increase in harm. State v. Logan, supra. Since the facts of the case sub judice are congruous with the standard espoused in State v. Logan, supra, viz., the restraint was prolonged, the confinement was secretive and the movement was substantial so as to demonstrate a significance independent of the other offense, therefore, there existed a separate animus as to each offense sufficient to support both convictions. Therefore, defendant was properly convicted of both kidnapping and rape as they were separate offenses and were committed with a separate animus as to each. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE ON THE BASIS THAT APPELLANT DID NOT HAVE STANDING TO CHALLENGE THE SEARCH OR THAT CONSENT HAD BEEN OBTAINED PRIOR TO THE SEARCH. This assignment of error also lacks merit. Defendant argues the evidence seized during the search of the Williams' apartment subsequent to his arrest should have been excluded by the trial court. First, defendant contends his motion to suppress the evidence should have been granted for the reason that he did not consent to the search. Defendant thus asserts that because he was a sometime "resident" of the - 12 - Williams' apartment he had a reasonable expectation of privacy in the premises as guaranteed by the Fourth Amendment. Defendant's argument is unpersuasive. Regarding this issue, this court has stated: The Fourth Amendment right to be free from unreasonable searches and seizures cannot be vicariously asserted. In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation. [Citations omitted.] * * * The mere assertion of a proprietary interest in the premises searched, standing alone, is insufficient to prove the fact of appellant's ownership. Appellant cannot simply assert such an interest and then fail to produce any evidence in support thereof, where the burden of proof is placed upon appellant. State v. Steele (1981), 2 Ohio App. 3d 105 at 107, 109. In the case sub judice, at the hearing on the motion to suppress, defendant made the assertion that he had a proprietary interest in the Williams' apartment but failed to produce any evidence in support of that assertion. Rather, the evidence adduced at the hearing tended to show defendant's place of residence was at his uncle's house. Upon a review of the record, it is clear defendant failed to establish the search of the Williams' apartment implicated his Fourth Amendment rights. Consequently, defendant is precluded from challenging the lawfulness of the search on this ground. Steele, supra. - 13 - Defendant makes the further argument the evidence seized during the search of the Williams' apartment should have been suppressed because the Williams' consent was not voluntarily obtained. He thus challenges the reasonableness of the police conduct in asking to search the premises while in possession of an arrest warrant instead of a search warrant. This argument is also unpersuasive. Warrantless searches based upon consent are valid if, in view of the totality of the circumstances, consent to the search is voluntarily given. State v. Danby (1983), 11 Ohio App. 3d 38. Voluntariness is a question of fact to be determined from all the circumstances. Id. (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218). In the case sub judice, the record reveals no coercion, either express or implied, was employed to obtain the Williams' permission to search their apartment. Furthermore, the police officers did not falsely claim possession of a search warrant, nor did they intimate to the Williamses they had a right to search when in possession of an arrest warrant. Rather, Det. Iafelice informed the Williamses that the items requested might be in evidence in the investigation of another case not connected to the case for which defendant was being arrested. Based upon all the facts and circumstances, it is clear consent to search the apartment was freely given by the persons - 14 - who actually resided therein. The trial court thus did not err in overruling defendant's motion to suppress. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. - 15 - 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. DAVID T. MATIA, C.J., and PATTON, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .