COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60148 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RICHARD HOLLINS, JR., : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 23, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-250,867 JUDGMENT : AFFIRMED IN PART, : REVERSED IN PART AND : SENTENCE VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Richard Hollins appeals from his convictions of felonious assault, kidnapping, and aggravated burglary. For the reasons set forth below, we vacate the felonious assault conviction and affirm the kidnapping and aggravated burglary convictions. Angela Evans testified that she was walking home to her apartment at 2477 Woodhill on the evening of March 15, 1990 when appellant started swinging at her and threatened to kill her. Evans later ran into her apartment. Appellant kicked the door in, dragged her upstairs and into the bathroom. He ripped her clothes off and hit her. He threatened to kill her with a knife and slashed her hands. He also beat her with a stick. Police officers who came to the scene testified that Evans had no clothes on and was covered with blood. Her face was swollen, her hand was cut severely and her legs were bruised. A bloody knife and stick were in the apartment. Police found appellant nearby who was also bloody although he was not injured. Appellant admitted to having a fight with Evans and that he had slapped her. He claimed that Evans came at him with the knife and got out by grabbing it. He claimed that he was angry with Evans because he thought she was using drugs and because she had left her five-year-old son with appellant all day. Appellant had a bench trial on charges of aggravated burglary, felonious assault and kidnapping, plus a specification for a prior conviction. He was found guilty on all charges, and the court enhanced his sentence pursuant to the specification. -3- He was sentenced to twelve to twenty-five years on each count, plus 10 years mandatory for the aggravated burglary and kidnapping counts, and eight years mandatory on the felonious assault count with all sentences to run concurrently. Appellant timely appealed. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO DISMISS THE PRIOR FELONY SPECIFICATION FROM THE BODY OF THE INDICTMENT AND BY SENTENCING THE DEFENDANT TO AN ENHANCED PENALTY DUE TO THE SPECIFICATION. R.C. 2941.142 reads in pertinent part as follows: 2941.142 Specifications to support term of actual incarceration. Imposition of a term of actual incarceration upon an offender pursuant to division (B)(1)(b), (2)(b), or (3)(b) of section 2929.11 of the Revised Code because the offender has previously been convicted of or pleaded guilty to an aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender has previously been convicted or pleaded guilty to such an offense. (Emphasis added.) Appellant stipulated that he was convicted of robbery pursuant to R.C. 2901.12 in 1973. In State v. Stewart (June 27, 1985), Cuyahoga App. No. 49178, unreported, this court held that the "substantially equivalent" language of R.C. 2941.142 was not void for vagueness. -4- In the opinion, the trial court observed that offenses are substantially equivalent where their elements correspond. Id. at 6. Prior R.C. 2901.12 provided as follows: No person, by force or violence, or by putting in fear, shall steal from the person of another anything of value. Whoever violates this section is guilty of robbery, and shall be imprisoned not less than one nor more than twenty-five years. (Emphasis added.) Current R.C. 2911.02, Robbery, provides as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. (B) Whoever violates this section is guilty of robbery, an aggravated felony of the second degree. (Emphasis added.) Both crimes include elements of theft and force. Since their elements correspond, the trial court correctly determined that these offenses are substantially equivalent to each other pursuant to R.C. 2941.142, and that appellant's sentence should be enhanced. Appellant's first assignment of error is without merit. II. Appellant's second assignment of error reads as follows: THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE DEFENDANT VIOLATED O.R.C. 2911.11, AGGRAVATED BURGLARY, AS THE EVIDENCE FAILED TO SHOW A TRESPASS IN A OCCUPIED STRUCTURE. In State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus, the Ohio Supreme Court held as follows: -5- 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 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. The Ohio Supreme Court has also held that a finder of fact may reasonably infer that commencement of an assault terminates a defendant's privilege to remain in a home, such that the defendant is trespassing. State v. Holloway (1988), 38 Ohio St. 3d 239, 243, U.S. certiorari denied (1989), 492 U.S. 925; State v. Steffen (1987), 31 Ohio St. 3d 111, 115, U.S. certiorari denied (1988), 485 U.S. 916, rehearing denied 485 U.S. 1030. In this case, the victim testified that appellant was not living with her at the time of the assault. She did testify that appellant had stayed over the night before and that she had given him a key, but she also stated that she told him to leave when he assaulted her. The credibility of witnesses is primarily for the trier of facts. State v. DeHass (1967), 18 Ohio St. 2d 230, paragraph one of the syllabus. In this case, the trier of fact could reasonably conclude that the victim terminated appellant's privilege to remain at her apartment when he commenced the assault. Accordingly, there was sufficient evidence of trespass. Appellant's second assignment of error is without merit. -6- III. Appellant's third assignment of error reads as follows: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE OHIO AND THE UNITED STATES CONSTITUTIONS, WAS DENIED BY THE TRIAL COURTS (SIC) FAILURE TO RULE ON HIS MOTION, PURSUANT TO SECTION 2941.25(A) OHIO REVISED CODE, THAT THE SAME CONDUCT COULD BE CONSTRUED AS ALLIED OFFENSES OF SIMILAR IMPORT, AND THAT A JUDGMENT OF CONVICTION BE ENTERED ON ONLY ONE OFFENSE. R.C. 2941.25 provides as follows: (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. In State v. Logan (19179), 60 Ohio St. 2d 126, syllabus, the court held as follows: 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 movement is substantial so as to demonstrate significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; -7- (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. In this case, appellant was convicted of kidnapping pursuant to R.C. 2905.01, felonious assault pursuant to R.C. 2903.11, and aggravated burglary pursuant to R.C. 2911.11. Those sections read in pertinent part as follows: 2905.01 Kidnapping (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: (1) To hold for ransom, or as a shield or hostage; (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; (5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority. (Emphasis added.) 2903.11 Felonious assault (A) No person shall knowingly: (1) Cause serious physical harm to another; 2911.11 Aggravated burglary -8- (A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2902.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; (2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. (Emphasis added.) In this case, the same conduct by appellant, i.e. restraining the victim while beating and knifing her, can be construed to constitute both kidnapping and felonious assault. The evidence indicated that appellant restrained Evans in order to beat her, such that the restraint was incidental to the crime of felonious assault. See, e.g., State v. Parker (1986), 31 Ohio App. 3d 128, syllabus. The restraint was not so prolonged or secretive so as to constitute a separate offense, nor did appellant transport the victim anywhere except within her own apartment. Accordingly, appellant should not have been convicted of both kidnapping and felonious assault. The same conduct of appellant cannot be construed to constitute both kidnapping and aggravated burglary. Each of -9- these offenses has at least one element that the other does not (restraint and trespass in an occupied structure). Appellant's third assignment of error is sustained as to his felonious assault and kidnapping convictions only, and the felonious assault conviction is reversed and vacated. IV. Appellant's fourth assignment of error reads as follows: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSES OF FELONIOUS ASSAULT AND KIDNAPPING. R.C. 2903.11, Felonious Assault, provides in part that no person shall knowingly cause serious physical harm to another. The trial court reasonably found these elements were met in this case beyond a reasonable doubt. See State v. Jenks, supra. The victim testified that appellant slashed her with a knife and beat her with a stick. The victim was covered with blood, had a broken nose, bruised legs, and the cuts in her hand required stitches. A bloody knife and stick were found in the victim's apartment. Appellant was found nearby. He had no injuries but was also bloody. R.C. 2905.01, kidnapping, provides in part that no person shall restrain another of liberty by force to inflict serious physical harm. The evidence was sufficient to sustain this conviction as well. The victim testified that appellant forced her into the bathroom where he beat her and slashed her. Appellant's fourth assignment of error is without merit. -10- Appellant's aggravated burglary and kidnapping convictions are affirmed. Appellant's felonious assault conviction is vacated. -11- 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 in part, 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. CORRIGAN, JOHN F., J., and *ECONOMUS, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge Peter C. Economus, Mahoning County Common Pleas Court.) JOSEPH J. NAHRA PRESIDING 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. .